Adams et al v. Austal, U.S.A., L.L.C.

Filing 858

ORDER denying 855 Motion for Reconsideration and/or Objections to the Court's Sua Sponte Order of Bifurcation as set out in order. Signed by Judge Kristi K. DuBose on 1/13/2015. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NELSON BUMPERS, et al.,
Plaintiffs,
vs.
AUSTAL, USA, L.LC.,
Defendant.

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CIVIL ACTION NO.: 08-0155-KD-N

ORDER
This matter is before the Court on “Plaintiffs’ Motion to Reconsider and/or Objections to
the Court’s Sua Sponte Order of Bifurcation” (Doc. 855) and Defendant’s Response (Doc. 857).1
I.

Standard of Review
As to the motion to reconsider, the Court construes Plaintiffs’ motion to reconsider the

Court's Order (Doc. 851) as filed pursuant to Rule 60(b)(1) for mistake of law and/or Rule
60(b)(6) for any reason that justifies relief. The decision to grant or deny a motion to reconsider
is left to the discretion of the trial court. Chapman v. AI Transp., 229 F.3d 1012, 1023–1024 (11th
Cir. 2000) (en banc). “In the interest of finality and conservation of scarce judicial resources,
reconsideration of an order is an extraordinary remedy and is employed sparingly.” Gougler v.
Sirius Prod., Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005) (citation omitted). Generally, “[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
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While not specifically referenced in the Order, the Defendant had previously requested
bifurcation/severance of plaintiffs’ claims. (Doc. 857 at 1 (citing Doc. 363)). This issue was extensively briefed
(Docs. 363, 371, 372, 387, 389), lengthy oral argument was held on the matter, and the bifurcation ruling was the
result of much careful consideration and deliberation by the undersigned (Doc. 399, 520). Eventually, all of the
prior trials of the plaintiffs’ in this case were bifurcated in part (e.g., grouped). (Doc. 399, 520). In short,
bifurcation was not a new concept or surprise aspect of this case to the parties, as Plaintiffs’ motion appears to
suggest.

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clear error or manifest injustice.” Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350,
1355 (M.D. Ala. 2003). See also Douglas Asphalt Co., v. QORE, Inc., 657 F.3d 1146, 1151–
1152 (11th Cir. 2011). However, “[m]otions for reconsideration should not be used to raise legal
arguments which could and should have been made before the judgment was issued[ ]” Sanderlin
v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th Cir. 2001) (citations omitted), and “cannot
be brought solely to relitigate issues already raised [,]” Harris v. Corrections Corp. of America,
2011 WL 2672553, *1 (11th Cir. Jul. 22, 2011). Further, “‘a motion that merely republishes the
reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to
change its mind.’” King v. Farris, 357 Fed. Appx. 223, 225 (11th Cir. 2009).
II.

Discussion
On August 12, 2014, this matter was set for a November 18, 2014 Final Pretrial

Conference, trial in December 2014, and December 3, 2014 jury selection. (Doc. 827). At the
November 18, 2014 Final Pretrial Conference, the Court notified the parties that the already
scheduled December 2014 trial of the seven (7) plaintiffs, would be bifurcated into two (2) trials
as follows: Trial One (Bumpers, Reed, Williams) and Trial Two (Hollis, Laffiette, Law and
Pettibone).

Plaintiffs’ counsel objected, both to the December 2014 trial setting and to

bifurcation, and orally moved for a continuance of the Final Pretrial Conference and Trial.
Upon consideration, but reluctantly because of the untimeliness of the motion,2 the Court granted
Plaintiffs’ counsel’s motion to continue but kept the trials bifurcated.

(Doc. 851).

The

bifurcated trials were then scheduled for the March 2015 civil trial term. (Id.) On December 17,
2014, Plaintiffs filed objections to bifurcation and a motion to reconsider the Court’s ruling.
2

There was no explanation by counsel for Plaintiffs for waiting until the November 2014 pretrial
conference to object (for the first time) to the December 2014 trial setting, even though counsel had over three (3)
months to raise the objection before the conference.

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(Doc. 855). Defendant opposes Plaintiffs’ motion. (Doc. 857).
In their motion, Plaintiffs do not raise any arguments based on, or present any evidence
of, an intervening change in controlling law, the availability of new evidence, or the need to
correct clear error or manifest injustice. Rather, Plaintiffs contend that bifurcation of the trial of
the seven (7) plaintiffs violates Fed.R.Civ.P. Rule 42 and “severely harms” plaintiffs.
Specifically, citing Rule 42 as grounds (“[i]f actions before the court involve a common
question of law or fact, the court may:…join for….trial any or all matters at issue in the
actions[]”), Plaintiffs claim that bifurcation contradicts the rule and “severely harms” them due
to “significant, if not complete, overlap of witnesses, documentary evidence and legal issues.”
Fed.R.Civ.P. Rule 42 (emphasis added)). Plaintiffs assert that they all have testimony “relevant
to all of the other plaintiffs[’] claims and all trial plaintiffs, as well as most other witnesses, [and]
will have to testify at both trials regardless of the bifurcation.” (Doc. 855 at 2-3).
As explained and emphasized to the parties throughout the course of this litigation, which
is not a class action, the Court has made sincere efforts to avoid the combining of each plaintiffs’
alleged discriminatory experiences into a potentially overwhelming and/or prejudicial “me too”
trial. According to Eleventh Circuit precedent, each plaintiff’s discrimination experiences stand
on their own and cannot be lumped together with other plaintiffs’ experiences, unless a plaintiff
was made aware of the other plaintiffs’ experiences while employed. This is at the heart of the
need for bifurcation now in this case, just as it has been previously. On appeal, the Eleventh
Circuit acknowledged the correctness of the undersigned’s rulings with regard to “me too”
evidence.
Additionally, the Court finds perplexing Plaintiffs’ position. During the final pretrial
conference, Plaintiffs’ counsel stated that all seven (7) plaintiffs were subject to the same Austal

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policies. Plaintiffs further assert in the present motion that all of their claims are “identical” and
that they “all worked in the same work environment during overlapping time periods[]” and “the
plaintiffs were subject to the same employment policies.” (Doc. 865 at 4). This appears to be
factually incorrect. As explained during the conference (and in detail in the summary judgment
orders on remand, see, e.g., Doc. 828 at 3-6, 10-17), the Plaintiffs were only subject to the Austal
policies in effect during the time each of them was employed, and they were not all employed at
the same time.3 Indeed, this Court went to great lengths to explain such in the summary
judgment orders on remand for these plaintiffs, to clarify each plaintiff’s status vis-à-vis the
Faragher/Ellerth defense.4
Specifically, Plaintiffs Bumpers, Reed, and Williams were not subject to the November
2007 Austal policy, which effected a change to the reporting procedure and for the first time
made reference to HR and added the condition that two (2) steps had to be completed before
contacting HR. In contrast, Plaintiffs Hollis, Laffiette, Law, and Pettibone were subject to the
November 2007 policy and so had different reporting requirements/procedures.5 This was the
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Specifically, the policies applicable to each remaining plaintiff based on the dates of their employment,
are as follows: Bumpers and Reed (April 2004, November 2005, April 2006); Williams (November 2005, April
2006); Hollis (April 2006 and November 2007); Laffiette and Pettibone (November 2005, April 2006, November
2007); and Law (April 2004, November 2005, April 2006, November 2007).
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The Court notes Plaintiffs’ assertion that “Austal failed to plead the Faragher defense in a timely
manner.” (Doc. 855 at 5 at note 4). This issue has already been fully litigated and moreover, appealed by Plaintiffs.
The Eleventh Circuit denied Plaintiffs’ appeal and upheld the Court’s ruling that Austal had preserved its Faragher
defense in its Answer. The Court finds Plaintiffs’ counsel’s misrepresentation, to the contrary, troublesome.
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For example, for the April 2004, November 2005, April 2006 policies (urges but not requires reporting
to supervisor, or to Department Manager, and supervisors are required to report then to Department Manager,
nothing about HR):
Any employee suspecting a violation of this policy, or who in any way feels uncomfortable with the actions
of Company Supervisors, employees or outsiders is urged to inform his or her Supervisor. If for any
reasons the employee does not feel comfortable discussing the situation with his or her immediate
Supervisor, he or she should report the matter to the Departmental Manager…Supervisors are required
to report suspected harassment and any allegations of harassment to the Departmental Manager.

(Continued)
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primary reason the court bifurcated the trials.
Moreover, Rule 42(a) does not require consolidation, but rather provides such as an
option within the Court’s discretion. And as stated supra, consolidation is tied to the existence
of common questions of law or fact. Here, there are different facts that prompt different
applications of the legal Faragher/Ellerth claims -- insofar as such are explicitly tied to a
particular policy in effect during each plaintiff’s employment. Also, Plaintiffs fail to reference
the other half of Rule 42, Rule 42(b), which provides for separate trials of one or more separate
issues and/or claims “[f]or convenience, to avoid prejudice, or to expedite and economize”
Fed.R.Civ.Proc. 42(b). It is more convenient for the Court to bifurcate the plaintiffs into separate
trials rather than litigating all seven (7) at once. The potential for prejudice is reduced with
bifurcation, as one plaintiff’s contentions about his/her reporting requirements as to a particular
Austal policy, will not cloud (or be confused with) another plaintiff’s contentions about his/her
reporting requirements when/if that particular policy was inapplicable. Bifurcation will also

For the November 2007 policy (employees should report but not required to report to supervisor, or to Department
Manager, but an employee must complete both steps (report to both) before being allowed to even contact HR, and
also, not required to talk to HR):
1.3 Reporting an Incident of Harassment or Workplace Violence
It is the employee's responsibility to report any incident of harassment or workplace violence. The
employee should report any incident of this nature to his/her supervisor. If the employee is not comfortable
reporting the incident to his/her supervisor you may talk to the department coordinator or manager. If you
need to talk with someone after you have completed both steps, you may contact the Human Resources
Department. Any reported allegations of harassment or workplace violence will be Investigated
confidentially and promptly.
In other words, there will be no testimony or evidence allowed at trial about the November 2007 policy, for
Bumpers, Reed and Williams, because this policy was not in effect during their employment and it is thus irrelevant
to their claims. In sum, the only trial testimony and evidence which will be permitted regarding Austal’s policies
and reporting procedures, will be for those specific policies in effect during the time a particular plaintiff was
employed. And Plaintiffs’ allegation, along with Terri Lindley’s claim that “these policies are essentially the
same[]” and “contain similar reporting procedures” (if that is set forth in the record), does not make them so. Even
the briefest reading of the policies, as set forth supra, reveals different reporting procedures and requirements, and
both did not involve HR. And again, similar is not identical, and when it comes to Faragher/Ellerth, the specific
reporting requirements are crucial matters of distinction.

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limit confusion about the applicability of the specific Austal policies.
Thus, the Court finds no basis to reconsider its ruling. The issue of bifurcation has been
dealt with throughout this case and the parties have had the opportunity to address same.
Additionally, this case has been appealed, and while the Eleventh Circuit did not speak directly
to the issue of bifurcation, it ruled that “an employee alleging a hostile work environment cannot
complain about conduct of which he was oblivious for the purpose of proving that his work
environment was objective hostile.” (Doc. 821 at 3 and 13-14). Moreover, the Eleventh Circuit
did note that the trials had been bifurcated, relating to an appeal concerning the limitation of “me
too” evidence during trial, and found that this Court properly limited the “me too” evidence at
trial. (Doc. 822 at 4). In sum, despite Plaintiffs’ contentions, the trials are not “carbon copies,”
and it will be the responsibility of counsel to appropriately tailor the testimony and evidence for
each trial accordingly.
Accordingly, it is ORDERED that Plaintiffs’ Motion to Reconsider and/or Objections to
the Court’s Sua Sponte Order of Bifurcation” (Doc. 855) is DENIED.
DONE and ORDERED this the 13th day of January 2015.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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