Barr v. Jefferson County Barber Commision, The et al
Filing
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MEMORANDUM OPINION AND ORDER DENYING 79 MOTION to Set Aside Judgment. Signed by Judge Virginia Emerson Hopkins on 6/21/2018. (JLC)
FILED
2018 Jun-21 AM 09:12
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GETA BARR,
Plaintiff,
v.
FLORENCE JOHNSON, TRINA
PAULDING, THE CITY OF
CENTER POINT, THOMAS
HENDERSON, and JOHN
WATKINS,
Defendants.
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) Case No.: 2:16-CV-1340-VEH
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MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
On July 18, 2016, Plaintiff Geta Barr (“Ms. Barr”) filed her Complaint in the
Circuit Court of Jefferson County, Alabama, alleging sixteen claims against several
Defendants stemming from the issues surrounding her barber shops. (See Doc. 1-1).
The case was removed to the Northern District of Alabama on August 17, 2016. (Doc.
1). On May 15, 2018, the Court granted in part a motion for summary judgment,
dismissing all the remaining federal claims in the process. (Docs. 76, 77). After all
federal claims were dismissed, the Court exercised its discretion to remand the case
to state court, Ms. Barr’s original choice of forum. (Docs. 76, 77, 78). Unhappy with
the result, Ms. Barr filed the instant Motion To Vacate Summary Judgment (the
“Motion”) on June 12, 2018. (Doc. 79). At this early juncture, the Defendants have
not briefed the Motion. They do not need to do so as Ms. Barr has not met the Rule
59(e) standard. The Motion is due to be DENIED.
II.
STANDARD
The first task for the Court is to determine whether Ms. Barr is seeking relief
under Rule 60(b) or Rule 59(e). In what is turning out to be a recurrent theme, she
expects the Court to infer this on its own. The Court is reading the Motion as being
brought under Rule 59(e) because it appears what Ms. Barr really wants is for the
Court to vacate its judgment and proceed to a trial. (See Doc. 79 at 16).1 Rule 59(e)
provides a means for a Court “to alter or amend a judgment.” See FED. R. CIV. P.
59(e) (capitalization and emphasis omitted).
The grant or denial of a motion to reconsider is left to the discretion of the
district court. See Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993
F.2d 800, 806 (11th Cir. 1993) (holding that abuse of discretion standard applies “to
a district court’s grant of a motion for reconsideration of a non-final judgment”);
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (“We review the
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The Court assumes, without deciding, that vacating its summary judgment would lead
to the entire case returning to this Court from state court – a rare procedural occurrence. Cf. J.O.
v. Alton Community Unit School Dist. 11, 909 F.2d 267 (7th Cir. 1990).
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district court’s . . . denial of a motion to reconsider summary judgment only for abuse
of discretion.” (citing Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir.
1993))). Nonetheless, in the interests of finality and conservation of scarce judicial
resources, reconsideration of an order is an extraordinary remedy and is employed
sparingly. See, e.g., United States v. Bailey, 288 F. Supp. 2d 1261, 1267 (M.D. Fla.
2003); Pennsylvania Ins. Guar. Ass’n v. Trabosh, 812 F. Supp. 522, 524 (E.D. Pa.
1992); Spellman v. Haley, No. 97-T-640-N, 2004 WL 866837, at *2 (M.D. Ala. Feb.
22, 2002) (“[L]itigants should not use motions to reconsider as a knee-jerk reaction
to an adverse ruling.” (citing Richards v. United States, 67 F. Supp. 2d 1321, 1322
(M.D. Ala. 1999))). Indeed, as a general rule, “[a] motion to reconsider is only
available when a party presents the court with evidence of an intervening change in
controlling law, the availability of new evidence, or the need to correct clear error or
manifest injustice.” Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F. Supp. 2d 1350,
1355 (M.D. Ala. 2003).
“The purpose of a Rule 59(e) motion is not to raise an argument that was
previously available, but not pressed.” Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir.
1998).
III.
ANALYSIS
Ms. Barr argues that the Court’s ruling on May 15 conflicts with established
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law. (See Doc. 79 at 3). Ms. Barr then goes on for about twelve pages to make an
argument that she could have made in her initial response to summary judgment – i.e.
applying McKinney v. Pate would be inappropriate in these circumstances. (See id.
at 3-12). The problem is that Ms. Barr did not explain to the Court in that response
why applying McKinney would be inappropriate. (See Doc. 63 at 15-20). In fact, Ms.
Barr barely cited McKinney at all in her whole 38 page brief. (See id. at 1-38). And
neither of those citations related to her current argument that McKinney does not
apply. (See id. at 15, 19).
Further, Ms. Barr should not be surprised that the Court applied McKinney.
This is not the first time in this litigation that McKinney has been cited in dismissing
one of her claims. (See Doc. 35 at 15-22); Barr v. Jefferson Cty. Barber Comm’n, 250
F. Supp. 3d 1245, 1256-57 (N.D. Ala. 2017). Ms. Barr had ample time to prepare her
response to a predictable argument.
Ms. Barr also cites numerous cases in her Motion that were not cited in the
original summary judgment response.2 In her Motion, Ms. Barr cites Quik Cash Pawn
& Jewelry, Inc. v. Sheriff of Broward City. (See Doc. 79 at 4) (citing 279 F.3d 1316).
That case is nowhere to be found in Ms. Barr’s summary judgment response. (See
generally Doc. 63). In her Motion, Ms. Barr cites United States v. Land. (See Doc. 79
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None of these cases were decided after the Court’s summary judgment ruling.
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at 8) (citing 163 F.3d 1295). That case also was not mentioned in her summary
judgment response. (See generally Doc. 63). The same is true of Ms. Barr’s citations
to G.W. v. Dale County Dep’t of Human Resources, City of Birmingham v. Southern
Bell Tel. & Tel. Co., State v. Albritton, Ex parte Alabama Textile Prods. Corp.,
Flatford v. City of Monroe, Plumer v. State of Md., Matthias v. Bingley, Vitek v.
Jones, and Arnett v. Kennedy. (See Doc. 79 at 8-14). None of those nine cases are
cited in Ms. Barr’s response to summary judgment. (See Doc. 63).
There is more. Ms. Barr argues that the Court “failed to consider the United
States Supreme Court’s holding pronounced in Zinermon v. Burch” when she never
argued the applicability of the Burch decision in her discussion of federal procedural
due process. (See Doc. 79 at 11) (emphasis changed); (See Doc. 63 at 15-20). In fact,
the Burch decision does not appear a single time in her entire brief. (See id. at 1-38).
Ms. Barr argues that the memorandum opinion runs afoul of U.S. v. James
Daniel Good Real Prop. and Mathews v. Eldridge. (See Doc. 79 at 3). Unlike the
litany of cases Ms. Barr has now discovered and wants to argue for the first time,
these two cases do appear in her summary judgment opposition. (See Doc. 63 at 19,
24). However, unlike the stars Ms. Barr now wants to argue them as, originally she
relegated them to cameo roles. (See id.). Ms. Barr first cited James Daniel to discuss
how due process rights relate to a home, even though this is a case about a business.
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(See Doc. 63 at 19). Her second citation to James Daniel is a mere “cf.” cite, standing
for not much more than the proposition that the government must follow the Due
Process Clause. (See id. at 24). Mathews is relegated to another case’s parenthetical
in the first instance (discussing homes again) and supporting the idea that the
defendants do not argue it (though neither does Ms. Barr) in the second. (See Doc. 63
at 19, 24).
Even “a passing reference to an issue in a brief [is] insufficient to properly raise
that issue.” See Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d
1326, 1331 n.4 (11th Cir. 2005) (citing Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989)). “A party who aspires to oppose a summary
judgment motion must spell out his arguments squarely and distinctly, or else forever
hold his peace.” Higgins v. New Balance Ath. Shoe Inc., 194 F.3d 252, 260 (1st Cir.
1999) (citing sources) (emphasis added). Instead of meandering through a discussion
about private homes (see Doc. 63 at 19-20) and employment law (see id. at 21), Ms.
Barr could have been making the arguments and applying the factors she now raises
in her Motion (see Doc. 79 at 3-15). The Court need not detail every argument raised
in her Motion compared to what she submitted to the Court at the summary judgment
stage. Compare Doc. 63 at 18-23 to Doc. 79 at 3-15. It is sufficient to say that the
contrast is stark. Notably, Ms. Barr is represented by counsel, meaning that her
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pleadings are given no special lenience.
It is not the Court’s job to formulate all the arguments that could have been
made on behalf of Ms. Barr. “Under the adversary system, it is counsel's
responsibility to explain why these points have legal merit; the Court does not serve
as counsel's law clerk.” Federal Ins. Co. v. County of Westchester, 921 F. Supp. 1136,
1139 (S.D.N.Y. 1996). The importance of raising arguments clearly cannot be
understated.
IV.
CONCLUSION
Ms. Barr had her chance to present to the Court all her arguments, including
any arguments regarding her procedural due process rights. The Court carefully
considered what she said. However, at this late juncture, Ms. Barr has not met the
Rule 59(e) standard (a standard she does not mention, or argue, in her Motion). Ms.
Barr will not be afforded the “second bite at the apple.” See O’Neal v. Kennamer, 958
F.2d 1044, 1047 (11th Cir. 1992). Accordingly, the Motion is DENIED.
DONE and ORDERED this the 21st day of June, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
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