F. W. Myers & Co. v. United States

The defendant having filed a motion requesting a rehearing and the vacation of the prior order of this court, entered on November 3, 1983 in the above action, and further requesting an order providing for an evidentiary hearing on plaintiffs claim of non-receipt of timely notice of denial of Protest No. 3801-9-000272 after discovery proceedings with respect thereto have been commenced and completed by the defendant, and

The court having considered the memoranda submitted by defendant in support of the aforesaid motion as well as the response of the plaintiff thereto, and

It appearing to the satisfaction of the court:

(1) That the defendant has presented no additional facts nor any new principles of law which have not been fully considered by this court in its prior determination of the instant action. That, in fact, the defendant is now seeking to reopen this proceeding by attempting -to ascertain the existence of relevant facts through untimely discovery proceedings.

(2) That the defendant by presenting to this court in the form of affidavits the facts' allegedly relating to its cross-motion to dismiss has foregone the opportunity to present these and/or additional facts in some other manner, particularly by an evidentiary hearing which it now seeks after the accumulation of further evidence through discovery. See Bowman v. Curt G. Joa, Inc., 361 F.2d 706 (4th Cir. 1966); Canvas Fabricators, Inc. v. William E. Hooper & Sons Co., 199 F.2d 485 (7th Cir. 1952).

Now therefore, it is hereby

Ordered that defendant’s motion for rehearing and request for an evidentiary hearing after discovery is denied.