Dugan v. Boston Digital Enterprises LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ALEXANDRA DUGAN, an individual, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-157-SLP
)
BOSTON DIGITAL ENTERPRISES, )
LLC, a Delaware Limited Liability )
Company; and )
EXERGEN CORPORATION, a )
Massachusetts Corporation, )
)
Defendants. )
O R D E R
Before the Court is Plaintiff’s Motion for Reconsideration of the Court’s Order
Granting Defendant Boston Digital Enterprises, LLC’s Motion to Dismiss and Request for
Limited Jurisdictional Discovery [Doc. No. 49] under Fed. R. Civ. P. 54(b). Defendant
Boston Digital Enterprises, LLC (Boston Digital) responded, see [Doc. No. 51], and the
matter is at issue. For the reasons articulated below, Plaintiff’s Motion is DENIED.
I. Background
The Court provides a brief summary of the procedural background relevant to the
present Motion. This is a copyright action arising out of Defendants Boston Digital’s and
Exergen Corporation’s unauthorized use of photographs which were generated by Plaintiff.
On February 4, 2025, Plaintiff Alexandra Dugan filed a Complaint [Doc. No. 1], bringing
federal law claims against Defendants under the Digital Millenium Copyright Act, 17
U.S.C. §§1201 et seq., and the Copyright Act, 17 U.S.C. §§ 101 et seq, as well as several
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state law claims against the Defendants. On April 21, 2025, Boston Digital filed a Motion
to Dismiss for Lack of Jurisdiction [Doc. No. 21]. Plaintiff filed an Amended Complaint
[Doc. No. 25] on May 12, 2025. See Am. Compl. [Doc. No. 25]. On May 27, 2025, Boston
Digital filed a Renewed Motion to Dismiss for Lack of Personal Jurisdiction [Doc. No. 29]
(Motion to Dismiss). In support of the Motion to Dismiss, Boston Digital
contemporaneously filed the Amended Declaration of Charles Murphy [Doc. No. 30].1 On
June 16, 2025, Plaintiff filed a response [Doc. No. 32] and contemporaneously filed the
Declaration of Alexandra Dugan [Doc. No. 33] in support. In the conclusion of her
response brief, Plaintiff “requests such other and further relief as the Court deems just,
including the opportunity to conduct jurisdictional discovery or an evidentiary hearing
should the Court determine that any factual issue needs resolution.” Resp. [Doc. No. 32] at
19. Boston Digital subsequently filed a reply [Doc. No. 36], to which Plaintiff filed a sur-
reply [Doc. No. 40].
On March 26, 2026, the Court issued the now-challenged Order [Doc. No. 46],
granting Boston Digital’s Motion to Dismiss, as stated therein. Now, Plaintiff asks the
Court to reconsider its Order.
II. Standards for Motion to Reconsider
A motion to reconsider is not expressly recognized by the Federal Rules of Civil
Procedure. See, e.g., Warren v. Am. Bankers Ins. of FL, 507 F.3d 1239, 1243 (10th Cir.
1 The Declaration of Charles Murphy was amended to reflect that the location of the subject
photoshoot was in Oklahoma, rather than Oregon. See Am. Decl. of Charles Murphy [Doc. No.
30]. In its March 26, 2026 Order [Doc. No. 46], the Court admonished Boston Digital for its prior
misrepresentation. See Order [Doc. No. 46] at 1, n. 2.
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2007); Hatfield v. Bd. of Cnty. Comm'rs for Converse Cnty., 52 F.3d 858, 861 (10th Cir.
1995); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Nonetheless, an
interlocutory order may be revised at any time prior to the entry of a final judgment as part
of the inherent powers of a district court. See Fed. R. Civ. P. 54(b); Warren, 507 F.3d at
1243. “Grounds warranting a motion to reconsider include (1) an intervening change in
the controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000) (citations omitted); Van Skiver, 952 F.2d at 1243.
“[A] motion for reconsideration is appropriate where the court has misapprehended
the facts, a party's position, or the controlling law . . . It is not appropriate to revisit issues
already addressed or advance arguments that could have been raised in prior briefing.” Id.
Indeed, “[a] motion to reconsider is not a second opportunity for the losing party to make
its strongest case, to rehash arguments, or to dress up arguments that previously
failed.” Aceco Valves, LLC v. Neal, No. CIV-21-368-D, 2022 WL 9497361, at *1 (W.D.
Okla. Oct. 14, 2022) (citing Matosantos Com. Corp. v. Applebee's Int'l, Inc., 189 F.R.D.
467, 468 (D. Kan. 1999), aff'd, 245 F.3d 1203 (10th Cir. 2001)). Because the conditions
that justify granting a motion to reconsider are rarely present, such motions are
disfavored. See Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir.
1995) (“[A] motion for reconsideration is an extreme remedy to be granted in rare
circumstances.”).
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III. Discussion
Plaintiff asserts that the Court committed clear error by not considering her
jurisdictional discovery request. As an initial matter, the Court notes that Plaintiff did not
appropriately request jurisdictional discovery by making a threadbare request in her
response brief. The Court’s Local Rules require a motion to be brought independent of a
response brief. See LCvR 7.1(c) (“Each motion filed shall be a separate document, except
where otherwise allowed by law, these rules, or court order. A response to a motion may
not also include a motion or a cross-motion made by the responding party.”). Additionally,
Courts in the Tenth Circuit have recognized that a generalized request for discovery in a
response brief is insufficient to warrant jurisdictional discovery in a matter. See, e.g., World
Wide Ass'n of Specialty Programs & Schs. v. Houlahan, 138 F. App'x 50, 52 (10th Cir.
2005); Nat'l Fair Hous. All. v. Brookdale Santa Fe, 621 F. Supp. 3d 1271, 1284 (D.N.M.
2022) (finding denial jurisdictional discovery not warranted where “Plaintiff filed no
[jurisdictional discovery] motion but instead made only a one-line request, almost as an
afterthought, in its response to Defendants’ Motion.”); see also United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1280–81 (11th Cir. 2009) (cited with approval by Spann v. Nat'l
Conf. of Bar Examiners, 166 F.4th 1201, 1207 (10th Cir. 2026)); Cisneros v. State Farm
Fire & Cas. Co., No. CIV-25-42-R, 2025 WL 1841864, at *2 (W.D. Okla. July 2, 2025)
(Request for jurisdictional discovery in Motion for Reconsideration was insufficient “to
warrant jurisdictional discovery” as it lacked “any citation to authority or argument in
support of request.”). Plaintiff did not file an independent motion for discovery as to the
jurisdictional allegations at issue in Boston Digital’s Motion to Dismiss. The Court finds
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it did not commit clear error when Plaintiff’s only request for jurisdictional discovery was
made in passing at the end of a response brief.
Even if the Court were to consider the merits of Plaintiff’s jurisdictional discovery
request, it would not warrant reconsideration of the March 26, 2026 Order. Plaintiff cites
to Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975) and Sizova v.
Nat. Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002) for the proposition
that a district court must allow discovery as to factual issues raised in a motion to dismiss
for lack of jurisdiction. However, the very next sentence in Budde goes on to state that
“[t]he trial court, however, is vested with broad discretion and should not be reversed
unless discretion is abused.” Bell Helicopter Textron, Inc. v. Heliqwest Int'l, Ltd., 385 F.3d
1291, 1298–99 (10th Cir. 2004) (quoting Budde, 511 F.2d at 1035.)). “[A] refusal to grant
discovery constitutes an abuse of discretion if the denial results in prejudice to a litigant.
Prejudice is present where ‘pertinent facts bearing on the question of jurisdiction are
controverted or where a more satisfactory showing of the facts is necessary.” Grynberg v.
Ivanhoe Energy, Inc., 490 F. App'x 86, 103 (10th Cir. 2012) (citing Sizova, 282 F.3d at
1326). This is also reflected in the Budde decision, where the Tenth Circuit found the
district court did not err in denying further jurisdictional discovery as “[i]mplicit in the trial
court’s order . . . dismissing the complaint for lack of jurisdiction is a determination that
further discovery would not demonstrate facts sufficient to constitute a basis for personal
jurisdiction [over the defendants].” Budde, 511 F.2d at 1036.
Plaintiff’s own request was clearly conditioned on whether the Court found that any
factual issues needed resolution through discovery. See Resp. [Doc. No. 32] at 19 (“should
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the Court determine that any factual issue needs resolution.”). The Court finds that the
March 26, 2026 Order was clear—there appeared to be no relevant jurisdictional
allegations which were controverted. See Order [Doc. No. 46] at 10-11. Plaintiff’s request
for discovery in the response brief is vague and fails to identify what factual allegations
needed to be further developed through discovery. Plaintiff cannot transfigure a vague and
conditional request dependent on the Court’s findings into a request for discovery as to all
jurisdictional issues previously addressed by the Court. Plaintiff does not raise arguments
that the Court erred in its factual findings, she only asserts the Court erred in its failure to
consider the jurisdictional discovery request. See Mot. [Doc. No. 49] at 5-6. The Court
finds that Plaintiff has failed to demonstrate the Court committed clear error warranting
reconsideration of the Court’s prior Order [Doc. No. 46].
Plaintiff’s remaining arguments contained in the Motion are directed at the
sufficiency of the Murphy Declaration, facts she believes are controverted and warrant
discovery, and substantive arguments as to the exercise of personal jurisdiction. The Court
finds that such arguments are improper in a motion for reconsideration as they rehash issues
that were addressed in the underlying briefing of Boston Digital’s Motion to Dismiss. See,
e.g., Servants of Paraclete, 204 F.3d at 1012; see also Spann, 166 F.4th at 1207 (finding
district court did not abuse its discretion in declining to address motion to reconsider where
the motion revisited issues already addressed in the underlying order). Furthermore, such
arguments are not tailored to the specific grounds warranting reconsideration.
Perplexingly, Plaintiff also makes a request for jurisdictional discovery in her
Motion for Reconsideration as well. As discussed above, such request must be made in an
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independent motion and should have been requested when Boston Digital’s Motion to
Dismiss was pending before the Court.
IV. Conclusion
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Reconsideration of the
Court’s Order Granting Defendant Boston Digital Enterprises, LLC’s Motion to Dismiss
and Request for Limited Jurisdictional Discovery [Doc. No. 49] is DENIED.
IT IS SO ORDERED this 16th day of October, 2025.
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