Morris v. Sequa Corporation

Filing 62

MEMORANDUM OPINION. Signed by Chief Judge Sharon Lovelace Blackburn on 3/4/13. (ASL)

FILED
2013 Mar-04 PM 05:08
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN KRIS MORRIS,
Plaintiff,
v.
PRECOAT METALS, a division of
SEQUA CORPORATION, a
Delaware Corporation,

Defendant.

}
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}

CASE NO. 2:11-cv-0053-SLB

MEMORANDUM OPINION
This case is currently before the court on plaintiff John Kris Morris’s (“Morris”)
Motion to Supplement the Record, and Motion for Reconsideration Pursuant to Fed. Rule
Civ. P. 59(e), (doc. 55),1 and defendant Precoat Metals’ (“Precoat”), a division of Sequa
Corporation, Motion to Strike Certain Exhibits from Plaintiff’s Rule 59(e) Motion, (doc. 60).
Upon consideration of the record, the submissions of the parties, the arguments of counsel,
and the relevant law, the court is of the opinion that Morris’s Motion to Supplement and for
Reconsideration, (doc. 55), is due to be denied, and Precoat’s Motion to Strike, (doc. 60), is
due to be granted.

1

Reference to a document number, (“Doc. ___”), refers to the number assigned to each
document as it is filed in the court’s record.

I. STANDARD OF REVIEW
A. Motion for Reconsideration
A Rule 59(e) motion2 allows parties the chance to, within 28 days, convince the
district court to alter or amend a final judgment. See Fed. R. Civ. P. 59(e) (“A motion to
alter or amend a judgment must be filed no later than 28 days after the entry of the
judgment.”). However, the standard that must be met is a high one: “The only grounds for
granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact.”
Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (alteration in original) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)); see also Evans v. Books-A-Million, CV-07S-2172-S, 2012 WL 5954118, *1 (N.D. Ala. Nov. 28, 2012) (“Rule 59(e) is silent regarding
the substantive grounds for a motion to alter or amend. Even so, courts have identified three
circumstances that may justify granting such motions: (1) an intervening change in
controlling law; (2) newly available evidence; and (3) the need to correct clear errors of law
or fact.”). Notably, newly discovered evidence does not include evidence that was already
presented to the trial court, evidence that a party already had possession of but chose not to
present, or even evidence that could have been reasonably discovered during the pendency

2

Though Morris has labeled his Motion as a “Motion for Reconsideration,” “[b]ecause
the Federal Rules of Civil Procedure do not provide for a motion for reconsideration, such
motions . . . are considered motions to alter or amend judgments pursuant to Fed. R. Civ. P.
59(e).” In re Greektown Holdings, LLC, 12-CV-12340, 2012 WL 4484933, *2 (E.D. Mich. Sept.
27, 2012) (quoting Basinger v. CSX Transp., Inc., 1996 WL 400182, *2 (6th Cir. 1996)) (internal
quotation marks omitted).

2

of the case through the exercise of due diligence. See Arthur, 500 F.3d at 1343 (“[A] Rule
59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of judgment.” (alteration in original) (quoting
Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005))); Mays
v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997) (“[W]here a party attempts to introduce
previously unsubmitted evidence on a motion to reconsider, the court should not grant the
motion absent some showing that the evidence was not available during the pendency of the
motion.”); 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2808 (3d ed. 2012) (“The moving party must have been excusably ignorant of the facts
despite using due diligence to learn about them.”).
Additionally, parties may not use a motion to alter or amend to make arguments they
could have made while the case was ongoing. See O’Neal v. Kennamer, 958 F.2d 1044, 1047
(11th Cir. 1992) (“Motions to amend should not be used to raise arguments which could, and
should, have been made before the judgment was issued.”). Moreover, there “is no burden
upon the district court to distill every potential argument that could be made based on the
materials before it on summary judgment. Rather, the onus is upon the parties to formulate
arguments.” Solutia, Inc. v. McWane, Inc., 672 F.3d 1230, 1239 (11th Cir. 2012).
Ultimately, these strict rules are in place because “[r]econsideration of a previous order is an
extraordinary remedy to be employed sparingly in the interests of finality and conservation

3

of scarce judicial resources.” Sonnier v. Computer Programs & Sys., Inc., 168 F. Supp. 2d
1322, 1336 (S.D. Ala. 2001) (alteration in original) (citations omitted).
B. Motion to Strike
Generally, district courts have broad discretion when considering a motion to strike.
See Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F. Supp. 2d 1354, 1360 (S.D. Fla.
2009). Federal Rule of Civil Procedure 12(f) sets forth the standard for granting a motion
to strike, stating in pertinent part that “[t]he court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f). The terms of the Rule only apply to pleadings, which are defined in Rule 7(a) as “(1)
a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a
counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a
third-party complaint; [or] (7) . . . a reply to an answer.” Fed. R. Civ. P. 7(a). Accordingly,
based on this Rule, some courts refuse to grant motions to strike evidence or other nonpleadings. See, e.g., Jallali v. Am. Osteopathic Ass’n, 11-60604-CIV, 2011 WL 2039532,
*1-2 (S.D. Fla. May 25, 2011) (noting that motion to dismiss was not a pleading, and
therefore denying motion to strike); Riviera S. Apartments, Inc. v. QBE Ins. Corp., 07-60934
CIV, 2007 WL 2506682, *1 (S.D. Fla. Aug. 30, 2007) (“[B]ecause the exhibit that Defendant
seeks to have stricken is not a ‘matter’ included in any pleading, it cannot be stricken
pursuant to Rule 12(f).”); Smith v. Se. Stages, Inc., 479 F. Supp. 593, 594 (N.D. Ga. 1977)

4

(observing that “affidavits submitted in support of a motion are clearly not within [the
pleading] category”).
However, other courts have noted that evidence submitted in support of motions or
pleadings may be “challenged by motions to strike because the Federal Rules provide no
other means to contest [its] sufficiency.” Anderson v. Ga. Gulf Lake Charles, LLC, 2:07-CV1378 LEAD, 2008 WL 919716, *1 (W.D. La. Apr. 4, 2008) (citing cases).3 Based on both
this rationale and the concept that a motion to strike evidence may sometimes be treated like
a motion in limine, see, e.g., Moulton v. Desue, 3:11-CV-382-J-37JBT, 2012 WL 2865809,
*1 n.2 (M.D. Fla. July 11, 2012); Moody v. Coliseum Psychiatric Ctr., LLC, 5:04-CV-364
(DF), 2006 WL 1652281, *4 n.3 (M.D. Ga. June 12, 2006); Hiscox Dedicated Corporate
Member, Ltd v. Matrix Group Ltd., Inc., 8:09-CV-2465-T-33AEP, 2011 WL 2148088, *3

3

The Eleventh Circuit cases considering motions to strike are not entirely clear. On the
one hand, when referring to a motion to strike an affidavit submitted in support of a motion for
summary judgment, the court has noted in a footnote that “motions to strike are only
appropriately addressed towards matters contained in the pleadings . . . .” Polite v. Dougherty
Cnty. Sch. Sys., 314 F. App’x 180, 184 n.7 (11th Cir. 2008). On the other, it has routinely
affirmed district court rulings considering motions to strike. See, e.g., Saunders v. Emory
Healthcare, Inc., 360 F. App’x 110, 112-13 (11th Cir. 2010) (affirming district court’s partial
grant of motion to strike unauthenticated evidence attached to summary judgment response);
Reese v. Herbert, 527 F.3d 1253, 1265, 1274 (11th Cir. 2008) (affirming district court grant of
motion to strike affidavit, but referring to it as the “decision to exclude [the] affidavit” and “the
disallowance” of the affidavit); Barron v. Fed. Reserve Bank of Atlanta, 129 F. App’x 512, 51920 (11th Cir. 2005) (reviewing district court’s denial of motion to strike evidence based on other
grounds and concluding that it “did not abuse its discretion in denying the motion to strike”); see
also Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170-71 (11th Cir. 2006) (entertaining,
but denying motion to strike evidence for other reasons). Accordingly, it appears that the
Eleventh Circuit generally permits motions to strike documents other than just pleadings, so long
as it is an evidentiary matter.
5

(M.D. Fla. May 31, 2011), many courts entertain motions to strike evidence.4 Under this
view, motions to strike evidence may be granted where the evidence that is offered is
inadmissible under the Federal Rules of Evidence. See Pashoian v. GTE Directories, 208
F. Supp. 2d 1293, 1297 (M.D. Fla. 2002) (stating a court may strike inadmissible evidence);
see also Alston v. Infirmary Health Hosps., Inc., 1:11-CV-550-CG-M, 2012 WL 5045369,
*2 (S.D. Ala. Oct. 18, 2012) (granting motion to strike affidavit attached to motion); 5C
Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, Federal
Practice and Procedure § 1383 (3d ed. 2012) (inadmissible evidence may be stricken). They
may also be granted on a motion to alter or amend where a party does not truly offer newly
discovered evidence, but rather, “points to evidence and makes arguments that could have
been offered at the time the motion for summary judgment was briefed.” Phillips v. Am.
Honda Motor Co., Inc., CIV.A. 04-0634-CG-B, 2006 WL 1889564, *1 (S.D. Ala. July 10,
2006) aff’d, 238 F. App’x 537 (11th Cir. 2007); see also Rawls v. Ala. Dep’t of Human Res.,
2:11CV59-MHT, 2012 WL 1957618, *1 (M.D. Ala. May 31, 2012) (striking evidence
submitted on motion for reconsideration because it had not been submitted during the
pendency of the case). Finally, this court has traditionally entertained motions to strike
evidence. See, e.g., Franks v. Indian Rivers Mental Health Ctr., 7:08-CV-1035-SLB, 2012
4

In addition, Rule 103 of the Federal Rules of Evidence implies that this may be done.
See Fed. R. Evid. 103(a)(1)(A) (stating that a party may claim error in a ruling to admit evidence
only if, among other things, the party “timely objects or moves to strike”); see also Corey Airport
Servs., Inc. v. City of Atlanta, 632 F. Supp. 2d 1246, 1267-68 (N.D. Ga. 2008), rev’d in part on
other grounds sub nom. Corey Airport Servs., Inc. v. Decosta, 587 F.3d 1280 (11th Cir. 2009)
(“Rule 103 implicitly recognizes that a motion to strike evidence is procedurally proper.”)
6

WL 4736444, *13, *24 (N.D. Ala. Sept. 30, 2012) (striking portions of affidavit containing
inadmissible evidence).
II. DISCUSSION
A. Motion for Reconsideration
Morris makes fifteen arguments as to why this court should alter its judgment pursuant
to Rule 59(e). (Doc. 55.) These are as follows: (1) Precoat did not supply the court with
supplemental evidence requested by the court at oral argument; (2) Morris has acquired
supplemental evidence as to the use of his insurance card between September 1, 2008, and
February of 2009; (3) a statute exists under Alabama law that does not require one to be
unemployed in order to receive unemployment benefits; (4) Morris filed his unemployment
claim by phone and his separation from Precoat was listed as “lack of work”; (5) he has
acquired supplemental evidence showing the Alabama Department of Labor (“ADOL”) sent
Precoat a standard form requesting information as to why Morris was no longer employed,
but that it never received a response; (6) evidence exists which shows that a notice was sent
to Precoat informing it that Morris was receiving unemployment compensation and
describing Precoat’s right to appeal; (7) Morris again lists provisions from the Alabama
Code, stating the conditions for when an individual shall be disqualified for unemployment;
(8) he argues that because Precoat did not contest his receipt of unemployment, he still
believed that he would be returned to work and was not on notice of his termination; (9) he
presents additional evidence of his injuries, requesting that the court reconsider his equitable

7

tolling arguments; (10) Morris also presents additional evidence demonstrating that his
insurance payments had been deducted from his paycheck in order to show that he did not
affirmatively stop paying benefits; (11) he argues that Precoat attempted to improperly
influence the court by claiming that it could prove Morris did not call Adriane Louie
(“Louie”) from the date he filed for unemployment (on September 1, 2008) until February
3, 2009, and that the evidence taken in the light most favorable to the plaintiff shows that he
did call Louie; (12) Morris argues he can succeed on the merits of his case because the
evidence taken in the light most favorable to the plaintiff evidences that he had a physical
impairment which made him substantially limited in more than one major life activity, and
the court did not properly construe the evidence in the light most favorable to the plaintiff;
(13) Morris did not have unequivocal notice of his termination until February of 2009; (14)
the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq.
(“ADAAA”), as opposed to the pre-amendment Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101, et seq., applies to his case because he did not have unequivocal notice
of his termination until February of 2009; (15) Morris requests the court consider his new
evidence because a reasonable jury could find in his favor. In addition to these, Morris
further requests a re-taxing of costs because his claims were not frivolous, unreasonable, or
without foundation. (See doc. 55 ¶¶ 1-16.)
The court need not specifically address each of these. Ultimately, all fifteen
arguments fail because of the high burden a losing party must show on a Motion under Rule

8

59(e): “[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or
present evidence that could have been raised prior to the entry of judgment.” Arthur, 500
F.3d at 1343. Many of the issues raised by Morris were first identified by the court at oral
argument on Precoat’s Motion for Summary Judgment, (doc. 34), and the court cannot make
the parties’ arguments for them—“the onus is upon the parties to formulate [the] arguments,”
Solutia, Inc., 672 F.3d at 1239. Though the court admires plaintiff’s counsel’s tenacity and
zealous advocacy for his client, as briefly explained below, each of Morris’s fifteen
arguments fails.
In his first argument, Morris claims that Precoat did not provide plaintiff or the court
with the supplemental evidence requested at oral argument (a new copy of Morris’s
termination sheet). (Doc. 55 ¶ 1.) This argument fails because the court never requested any
supplemental evidence. While the court considered requiring a new copy of the termination
sheet, it ultimately determined that the evidence would not make any difference in its
decision. Therefore, the court instructed counsel that it would not be requiring any
supplemental evidence.
Second, arguments (2), (doc. 55 ¶ 2), and (5), (id. ¶ 5), both hinge on the submission
of new evidence that Morris did not have at the time of oral argument on Precoat’s Motion
for Summary Judgment, (doc. 34), but procured afterward. Despite the fact that Morris did

9

not possess the evidence5 during the pendency of the case, the court agrees with Precoat that
it cannot take the evidence into consideration because Morris has not shown that the evidence
was unavailable to him at that time. See Mays, 122 F.3d at 46 (affirming the district court’s
denial of a motion for reconsideration because the party who had filed the motion “failed to
allege, much less show, that she could not have submitted the affidavits attached to her
motion for reconsideration any earlier”); Marous Bros. Const., Inc. v. Ala. State Univ., 2:07CV-384-RDP-CSC, 2010 WL 2773422, *3 (M.D. Ala. July 14, 2010) (“[Plaintiff] has not
shown that the ‘newly discovered’ evidence was not available . . . when he was responding
to Defendants [sic] motions for summary judgment. Rather, the evidence which [he] claims
is ‘newly discovered’ was only recently discovered because [he] failed to conduct necessary
discovery . . . .”); cf. Adams v. City of Montgomery, 2:10CV924-MHT, 2012 WL 1952294,
*2 (M.D. Ala. May 30, 2012) (granting motion to reconsider because certain material
documents had been hidden throughout discovery and came to light only after the court
granted summary judgment).
Third, several of Morris’s arguments rest (at least partially) upon the submission of
new evidence that Morris did have at the time of oral argument, but that he did not submit
to the court at the summary judgment stage. (See doc. 55 ¶¶ 4, 6, 9, 10, 11, 15.)
5

The supplemental evidence that Morris recently obtained and now wishes to submit to
the court are patient history records from his pharmacy, (doc. 55-1), showing that he used his
insurance card nine times from June 1, 2008 to February 1, 2009, (id.), as well as an e-mail from
the ADOL office stating that it had no record of a response from Precoat regarding ADOL’s
inquiry about Morris’s separation from the company, (doc. 55-3).

10

Additionally, several other arguments at least partially rest on evidence that was already
submitted to the court for purposes of summary judgment. (See id. ¶¶ 9, 10, 11, 12, 15.)
Again, these pieces of evidence do not constitute newly discovered evidence for purposes of
Rule 59(e), and thus, cannot be considered by the court. See Arthur, 500 F.3d at 1343 (Rule
59(e) motion cannot be used to relitigate old matters or present evidence that could have been
raised prior to entry of judgment); see also, e.g., Saenzpardo v. United Framing Const. Co.,
CIV.A. 10-00049-CG-M, 2011 WL 5155094, *2 (S.D. Ala. Oct. 31, 2011) (information
available to movant that had already been in his possession did not constitute newly
discovered evidence sufficient to warrant reconsideration under Rule 59(e)). At bottom,
these are all attempts at asking the court simply to reexamine its ruling, but “[r]econsidering
the merits of a judgment, absent a manifest error of law or fact, is not the purpose of Rule
59.” Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010) (“Having read
[the] motion, we conclude that it did nothing but ask the district court to reexamine an
unfavorable ruling.”).
Finally, Morris’s additional arguments rest on legal grounds and raise issues that were
either not raised by the parties in the briefing on Precoat’s Motion for Summary Judgment,
(see doc. 55 ¶¶ 3, 7, 8), or simply rehash old arguments that this court has already considered,
(see id. ¶¶ 9, 10, 11, 12, 13, 14). The court cannot, at this stage, take into consideration legal

11

arguments that were not made before the entry of a final judgment.6 See O’Neal v.
Kennamer, 958 F.2d 1044, 1047 (11th Cir. 1992) (noting that motions to alter or amend are
not to be used to raise arguments which could have been made before judgment was
rendered); see also, e.g., E.E.O.C. v. Summer Classics, Inc., 471 F. App’x 868, 870-71 (11th
Cir. 2012) (affirming district court’s disallowance of a new argument raised in a Rule 59(e)
motion to alter or amend). Moreover, the court also cannot entertain arguments that were
already made at the summary judgment stage absent manifest error. This would amount to
relitigation of the case, see Arthur, 500 F.3d at 1343, which is not the proper purpose for a
Rule 59(e) motion. See Pres. Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps
of Eng’rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995) (“A motion for reconsideration is not
an opportunity for the moving party and their [sic] counsel to instruct the court on how the
court ‘could have done it better’ the first time.”). Therefore, in light of the high burden that
a party filing a Rule 59(e) Motion must meet, the court finds that Morris has failed to show
that there has been an intervening change in controlling law, newly available evidence, or a
clear error of law or fact. See Evans, 2012 WL 5954118, at *1.
Although Morris has failed to meet the requirements necessary to succeed on a Rule
59(e) Motion, the court will nevertheless briefly address some of plaintiff’s disagreements
6

As noted earlier, several of the arguments made by Morris in his Motion for
Reconsideration were raised by the court at oral argument. For example, the court asked the
parties about Alabama Code § 25-4-71, the provision for “[w]hen individuals [are] deemed
unemployed,” which technically allows an individual to be employed to some extent, yet still
receive unemployment. See Ala. Code § 25-4-71 (1975).

12

with the court’s Memorandum Opinion. First, Morris states that “the court improperly
relied” on his testimony regarding the ceasing of his insurance payments. (Doc. 55 ¶ 10.)
However, Morris no doubt knew during his employment with Precoat that his insurance
payments were deducted from his pay; therefore, he must have been aware that his insurance
was no longer being paid for (i.e., deducted from his paycheck) once he stopped receiving
paychecks. It makes little difference whether Morris affirmatively stopped paying for his
insurance or not, so long as he knew it was no longer being paid for. This evidence goes
toward Morris’s state of mind—namely, whether he had unequivocal notice of his
termination.
Next, Morris argues in his Motion that he tried to contact Louie from August 22,
2008, from February 3, 2009, and that the facts in the light most favorable to the plaintiff
show that he did indeed contact her. (Doc. 55 ¶ 11.) The court never stated that it found
Morris had not contacted Louie, it only stated that “he cannot say for sure that he contacted
Precoat after filing for unemployment benefits [on September 1, 2008].” (Doc. 52 at 30.)
The evidence on this point is unclear. (See doc. 34-4 at 149-50; doc. 34-5 at 231; doc. 38-2
¶ 26, ¶ 30.) However, even if the evidence showed that Morris had unequivocally tried to
contact Louie, it would not change the result. In such a scenario, Louie’s complete failure
to respond would have certainly aided in alerting him to the fact that he was no longer
employed at Precoat. Therefore, the evidence in this case, with or without evidence of his
contacting Louie, still evinces that Morris had notice—or at the very least, reason to

13

know—of his termination as of September 1, 2008. (See doc. 52 at 30.)
Finally, Morris also takes issue with the court’s decision on the merits, stating that
“the court has . . . not properly considered evidence in the light most favorable to the
plaintiff” in regards to whether Precoat perceived Morris as substantially limited in any major
life activity under the ADA. (Doc. 55 ¶ 12.) However, the court need not consider this
argument, given that it has not reconsidered its holding that Morris was on unequivocal
notice and also had reason to know of his termination for purposes of the statute of
limitations. (See doc. 52 at 34, 37.) Therefore, for all of the reasons stated above, Morris’s
Motion for Reconsideration is due to be denied. See, e.g., Branch Banking & Trust Co. v.
Imagine CBQ, LLC, CIV.A. 11-00168-KD-C, 2012 WL 3996842, *3 (S.D. Ala. Sept. 11,
2012) (denying rule 59(e) motion to alter or amend because it cannot be used to relitigate old
matters); see also, e.g., Collins v. Ensley, 11-16077, 2012 WL 5870679, *5 (11th Cir. Nov.
21, 2012) (affirming district court’s denial of motion for reconsideration).
B. Motion to Supplement the Record
As discussed extensively above, motions to alter or amend do not allow the losing
party to attempt to supplement the record with previously available evidence. See Mays, 122
F.3d at 46. Accordingly, the court will not permit Morris to supplement the record with new
evidence that he could have submitted to the court at an earlier stage in the litigation. See,
e.g., Carey v. Bellsouth Short Term Disability Plan, 1:06-CV-2589-WSD, 2008 WL 595938,
*2-3 (N.D. Ga. Feb. 29, 2008) (refusing to consider new evidence submitted in support of

14

motion to reconsider where party did not explain why it could not have been submitted earlier
at the summary judgment stage); Rodriguez v. Cruise Ships Catering & Serv. Int’l, N.V., 0360288-CIV, 2004 WL 5589522, *1-2 (S.D. Fla. Jan. 6, 2004) (same). Therefore, Morris’s
Motion to Supplement the Record is due to be denied.
C. Motion to Strike
As observed earlier, motions to strike may be appropriately directed towards the
evidence offered in a case. See Anderson, 2008 WL 919716, at *1. Here, as already
discussed at length above, all of the evidence presented by Morris along with his Motion for
Reconsideration “could have been offered at the time the motion for summary judgment was
briefed.” Phillips, 2006 WL 1889564, at *1. Thus, “[f]or that reason alone, the court [may]
grant the motion to strike and not consider the evidence.” Rawls, 2012 WL 1957618, at *1.
Accordingly, the court need not address Precoat’s additional arguments, and it agrees that the
evidence is due to be stricken because it is not appropriately before the court and thus cannot
be taken into consideration. See, e.g., Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 0911529, 2010 WL 1063775, *1-2 (E.D. Mich. Mar. 22, 2010) (striking exhibits to motion for
reconsideration that were not previously submitted because they were available at the time
the motion disposing of the case was considered); Phillips, 2006 WL 1889564, at *1 (striking
affidavit because it was not newly discovered evidence); Rawls, 2012 WL 1957618, at *1
(striking affidavit where plaintiff gave no reason why it had not been submitted earlier).

15

Therefore, the court will grant Precoat’s Motion to Strike Certain Exhibits from Plaintiff’s
Rule 59(e) Motion. (Doc. 60.)
D. Re-taxing of Costs
Lastly, when it entered its Opinion granting Precoat’s Motion for Summary Judgment,
(doc. 52), the court also entered a contemporaneous Order dismissing the case and taxing
costs to Morris, (doc. 53). Morris now moves the court for a re-taxing of costs against him,7
arguing that in cases brought under the ADA, policy considerations weigh against the
awarding of attorney’s fees and costs to a prevailing defendant unless the court finds the
claims were frivolous, unreasonable, or without foundation. (Doc. 55 ¶ 16.) He further
argues that even in such a situation, the losing plaintiff’s financial situation should be
considered before imposing costs in a case such as his where the plaintiff is indigent. (Id.)
Precoat responds to this argument in Precoat’s Response to Morris’ Objections to Precoat’s
Request for Bill of Costs, (doc. 61), arguing that the imposition of costs upon Morris, the
losing party, was proper and should not be altered; in particular, Precoat argues that Morris
has not provided substantial documentation of a true inability to pay, (id. at 1-2). The court

7

Additionally, after filing his Motion for Reconsideration, Morris filed Plaintiff’s
Objections to Defendant’s Bill of Costs, (doc. 57), where he disputes certain costs sought by
Precoat. However, the court need not consider his Objections because Precoat has responded
that it will elect to seek only the total costs from its Bill of Costs filed with the court, (doc. 54),
minus the amount objected to by Morris. (Doc. 61 at 3.) This amounts to a total of $3,642.90 in
costs that Precoat now seeks. (Id.)

16

agrees that the imposition of costs was proper and that Morris has not shown a true inability
to pay. Therefore, costs shall be taxed against Morris in the amount of $3,642.90.
Rule 54(d)(1) of the Federal Rules of Civil Procedure provides that “costs—other
than attorney’s fees—should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1).
Though Morris argues that costs should only be imposed when the claims were frivolous,
unreasonable, or without foundation, this standard applies only to the awarding of attorney’s
fees. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1179 (11th Cir. 2005) (noting the
standard for awarding attorney’s fees in an ADA case is whether a plaintiff’s case was
“frivolous, unreasonable, or groundless” (quoting Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 422 (1978)) (internal quotation marks omitted)). The imposition of costs by a
district court is discretionary, see Chapman v. AI Transp., 229 F.3d 1012, 1038 (11th Cir.
2000), and as Precoat correctly observes, there is a presumption in favor of awarding costs
to the prevailing party, see Picket v. Iowa Beef Processors, 149 F. App’x 831, 832 (11th Cir.
2002).
While a district court may consider a losing party’s ability to pay, “good faith and
limited financial resources are not enough to overcome th[is] strong presumption.” Id. There
must be a sound basis to “defeat the presumption and deny full costs,” Chapman, 229 F.3d
at 1039, which means that if a court does “choose[] to consider financial status, ‘it should
require substantial documentation of a true inability to pay,’” Berube v. McCann Aerospace
Machining Corp., 11-15152, 2012 WL 3237831, *2 (11th Cir. Aug. 10, 2012) (quoting

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Chapman, 229 F.3d at 1039). Moreover, a court is not permitted to consider the relative
wealth of the parties, and “[e]ven in those rare circumstances where the non-prevailing
party’s financial circumstances are considered in determining the amount of costs to be
awarded, a court may not decline to award any costs at all” because the deterrent purpose of
awarding costs would not be served. Chapman, 229 F.3d at 1039.
In this case, even if this court considered Morris’s financial status, Precoat is correct
in that Morris has not shown substantial documentation of his inability to pay. Substantial
documentation includes more proof than simply “self-serving statements that [one] is unable
to pay the costs sought.” McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994) (“McGill
failed to establish in this record that he was incapable of paying the court-imposed costs at
this time or in the future. His response to the . . . petition for costs merely alleged, without
documentary support, that he was indigent and therefore he should not have to pay costs.”).
Here, even if the court were to consider Morris’s Affidavit, it is not the substantial
documentation that is required to show his inability to pay. See Chapman, 229 F.3d at 1039
(“[T]here [must] be clear proof of the non-prevailing party’s dire financial circumstances
before that factor can be considered . . . .”). Because Morris has not demonstrated an
inability to pay the reduced costs sought by Precoat, Precoat’s Bill of Costs, reduced by
Precoat to $3,642.90, is approved.

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III. CONCLUSION
For the foregoing reasons, the court is of the opinion that Morris’s Motion to
Supplement the Record, and Motion for Reconsideration Pursuant to Fed. Rule Civ. P. 59(e),
(doc. 55), is due to be denied, and Precoat’s Motion to Strike Certain Exhibits from
Plaintiff’s Rule 59(e) Motion, (doc. 60), is due to be granted. Morris is directed to pay costs
in the amount of $3,642.90. An order will be entered contemporaneously with this Opinion.
DONE, this 4th day of March, 2013.

SHARON LOVELACE BLACKBURN
CHIEF UNITED STATES DISTRICT JUDGE

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