Escapes!, Inc. v. Legacy Land & Developments, LLC et al

Filing 367

ORDER denying 365 Balliett's Motion for Reconsideration of District Judge Order ; denying 366 Kearney's Motion for Reconsideration of District Judge Order. Signed by Judge Kristi K. DuBose on 10/26/2012. (copies mailed as directed) (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ESCAPES!, INC.,
Plaintiff,

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vs.
ALLAN A. BUNIAK, et al.,
Defendants.

CIVIL ACTION NO: 09-00515-KD-M

ORDER
This matter came before the Court on Defendant Dolores Balliett’s Motion to Reconsider
(Doc. 365) and Defendant William Kearney’s Motion to Reconsider (Doc. 366) the Court’s
September 27, 2012 Order and Final Judgment (Docs. 354, 355).
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 clear error or manifest injustice.” Summit Med. Ctr. of Ala., Inc. v.
Riley, 284 F. Supp. 2d 1350, 1355 (M.D. Ala. 2003).
657 F.3d 1146, 1151-1152 (11th Cir. 2011).

See also Douglas Asphalt Co., v. QORE, Inc.,

However, “[m]otions for reconsideration should not be

used to raise legal arguments which could and should have been made before the judgement 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).

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A review of the motion to reconsider indicates that Defendants Balliett and Kearney do not
raise any argument 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.
Nevertheless, giving these Defendants’ motions to reconsider the liberal construction due to pro se
motions, Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed”)
(quotations omitted), the Court construes the motion to reconsider as based upon the need to correct
clear error or manifest injustice.

In that regard, the Court has reviewed the motions to reconsider

and finds that there is no clear error or manifest injustice resulting from its decision.

In the motions,

these Defendants focus their grounds for reconsideration on their purported ill health and the 2010
tornados in Alabama resulting in travel problems -- claiming such as the reason for their failure to
appear and/or comply with Court orders – as well as seek to be dismissed from the litigation due to
same.

This matter (and the propriety of entry of a default judgment against Defendants Balliett and

Kearney which dealt, in part, with their health and travel issues) has been exhaustively litigated since
2009, and an Order entering damages against these defendants as well as a Final Judgment have
issued (Docs. 354, 355).

As such, these Defendants’ request to now be dismissed from the case as

part of a motion to reconsider is untimely as well as baseless.

Additionally, the asserted grounds for

reconsideration -- their alleged health issues and travel problems tied to the 2010 tornados -- fail to
address the merits of this case and instead, simply endeavor to relitigate matters which have already
been thoroughly addressed by this Court.

Accordingly, it is ORDERED that Defendant Dolores

Balliett’s Motion to Reconsider (Doc. 364) and Defendant Kearney’s Motion to Reconsider (Doc.
365) are DENIED.
The Clerk is DIRECTED to provide a copy of this Order to the four (4) Defendants against

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whom judgment has been entered, by mailing a copy of this Order and the Final Judgment (via
certified mail return receipt) to the following addresses:
-William J. Kearney, 631 South Orlando Avenue, Suite 400, Winter Park, FL,
32789;
-Dolores “Dee” Balliett, 631 South Orlando Avenue, Suite 400, Winter Park, FL,
32789;
-Legacy Land & Development, LLC, c/o Registered Agent, The Corporation Trust
Company of Nevada, 311 South Division Street, Carson City, NV, 89703, as well as
to the address where the Complaint was served, as set forth in Doc. 12;
-Escapes Acquisition Company, LLC, c/o Registered Agent, National Registered
Agents, Inc. of NV, 1000 East William Street , Suite 204, Carson City, NV, 89701, as
well as to the address where the Complaint was served, as set forth in Doc. 7.
DONE and ORDERED this the 26th day of October 2012.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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