United States District Court, S.D. Mississippi, Eastern Division
MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant Glenn Doyle Beach,
Jr.'s Motion for Reconsideration . Having considered
the Motion, the Court finds that it should be denied.
September 19, 2018, Defendant had a subpoena issued to a
nonparty, Cellular South Inc., seeking documents relating to
cellular phone numbers registered to nonparties, Christian
and Lehman Braley. See Subpoena  at 3-4; Return
. On October 3, 2018, the Braleys filed a
Motion to Quash , requesting that the Court quash or, in
the alternative, modify the subpoena. Defendant did not
respond to the Motion  or file a notice that he did not
intend to respond. Accordingly, on October 18, 2018, the
Court granted the Motion  as unopposed pursuant to L.U.
Crim. R. 47(C)(1). See Order .
next day, Defendant filed the instant Motion ,
requesting that the Court reconsider its Order  and
require Cellular South to produce the documents sought by the
subpoena. Defendant argues that his failure to file a
response to the Motion to Quash was an oversight by counsel.
Additionally, Defendant argues that he could be unduly
prejudiced if the Court does not reconsider its Order.
According to Defendant, the information sought by the
subpoena may contain exculpatory evidence which could be
vital to his defense.
to reconsider in criminal cases are treated like motions to
reconsider in civil suits.” United States v.
Presley, 2013 WL 1980388, at *2 (S.D.Miss. May 13,
2013). Motions for reconsideration are generally analyzed
under the standard for a motion to alter or amend judgment
under Federal Rule of Civil Procedure 59(e) or a motion for
relief from a judgment or order under Rule 60(b). See
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n2
(5th Cir. 2012). Rule 59(e) governs a motion seeking
reconsideration of a ruling when the motion is filed within
twenty-eight days of judgment. Id. Here, Defendant
filed his Motion for Reconsideration the day after the Court
entered its Order. Therefore, it should be considered under
motion to alter a ruling under 59(e) “must clearly
establish either a manifest error of law or fact or must
present newly discovered evidence and cannot be used to raise
arguments which could, and should, have been made before the
judgment issued.” Rosenzweig v. Azurix Corp.,
332 F.3d 854, 863-64 (5th Cir. 2003) (internal quotations and
citations omitted). This Court has “considerable
discretion” in deciding whether to grant a Rule 59(e)
motion. Edward H. Bohlin Co., Inc. v. Banning Co.,
Inc., 6 F.3d 350, 353, 355 (5th Cir. 1993). “The
granting of a Rule 59(e) motion is an extraordinary remedy
and should be used sparingly.” In re Pequeno,
240 Fed.Appx. 634, 636 (5th Cir. 2007) (internal quotations
and citation omitted).
arguments raised by Defendant could and should have been
advanced in response to the Motion to Quash . Defendant
argues that he should not be punished for his counsel's
failure to file a response to the Motion to Quash. However,
“the nature of representation is that, as a general
rule, the conduct of attorneys is imputed to clients.”
Campbell v. Griffin, 265 Fed.Appx. 269, 271 n.3 (5th
Cir. 2008); see also Gonzalez v. State Fair of Texas,
Inc., 2000 WL 326165, at *3 (N.D. Tex. Mar. 24, 2000)
(“[Counsel] has offered no valid reasons for failing to
respond or to request a timely extension of the response
date. The errors that occurred here are not even sufficient
to rise to a level of excusable neglect. Instead they are
more akin to inadvertence, which is insufficient to warrant
relief.”); Nationwide Mut. Fire Ins. Co. v.
Pham, 193 F.R.D. 493, 495 (S.D.Miss. 2000)
(“Neglect in defending against [a] motion for summary
judgment is not a proper use for a motion for reconsideration
under Rule 59(e).”). Thus, the Motion for
Reconsideration could be denied for Defendant's failure
to previously raise these issues.
importantly, however, Defendant has failed to present any
newly discovered facts or convince the Court that there has
been a manifest error of law. Fed. R. Crim. P. 17(c) governs
the issuance of subpoenas duces tecum in criminal
cases. “Although rule 17 extends to material not
subject to rule 16 discovery, it is not intended to provide
an additional means of discovery.” United States v.
Arditti, 955 F.2d 331, 345 (5th Cir. 1992). To gain
access to materials under Rule 17, Defendant must show
“(1) the subpoenaed document is relevant, (2) it is
admissible, and (3) it has been requested with adequate
specificity.” Id. Defendant has failed to make
subpoena at issue seeks any and all records-including all
call logs and all text message exchanges-from Christian and
Lehman Braley's phones since January 1, 2015. Defendant
argues that this information “may contain exculpatory
evidence, ” which “may be admissible under F.R.E.
803(6), 803(7), 901, and/or 902.”
Defendant's conclusory assertions, the subpoena does not
contain a specific request and Defendant has not demonstrated
that the requested information is relevant or admissible.
Instead, Defendant invites the Court to speculate as to the
nature of the content of years' worth of phone records
and the relevance of such information. Defendant's
sweeping request is an attempt to use a Rule 17 subpoena as a
“discovery device, which it is not.” United
States v. Nixon, 777 F.2d 958, 969 (5th Cir. 1985);
see also United States v. Hernandez, 2012 WL 6213263
(N.D. Tex. Dec. 13, 2012) (“Because Defendant has
failed to establish with sufficient specificity the
evidentiary nature of the requested materials and their
admissibility as evidence, the court will deny
Defendant's Request for Production of Inmate Telephone
Calls of Cooperating Coconspirators Pursuant to Rule
17(c).”); United States v. Bermingham 2007 WL
1052600, at *7 (S.D. Tex. Apr. 5, 2007) (“This
comprehensive request for all documents, records,
minutes, or whatever else, is made without any showing that
they or any of them are relevant, or that they of any of them
would be admissible in evidence. It is simply a broad
discovery request such as may be used, or at least attempted,
in civil case discovery.”).
THEREFORE, ORDERED that Defendant's Motion for
Reconsideration  is DENIED.