Perkins v. Berg Spiral Pipe Corp.

Filing 43

ORDER DENYING Plf's 40 Motion for Reconsideration as set out. Signed by Judge Callie V. S. Granade on 2/28/2013. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RENCE PERKINS,
Plaintiff,
vs.
BERG SPIRAL PIPE CORP.
Defendant.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 12-0468-CG-N

ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the court on the plaintiff, Rence Perkins’
(“Perkins’”) motion for reconsideration (Doc. 40), which is brought pursuant
to Federal Rule of Civil Procedure 59(e). The court notes, however, that Rule
59 does not apply here, because the court has entered no final order or
judgment, but only an interlocutory order. In re: Bayshore Ford Truck Sales,
Inc., 471 F.3d 1233, 1260–61 (11th Cir. 2006) (grant of partial summary
judgment is an interlocutory order); Toole v. Baxter Healthcare Corp., 235
F.3d 1307, 1315 (11th Cir. 2000) (an interlocutory order is not subject to the
limitations of Rule 59). Nor is Perkins’ motion proper under Rule 60(b). Bon
Air Hotel, Inc. v. Time, Inc., 426 F.2d 858, 862 (5th Cir.1970) (an
interlocutory order is not subject to Rule 60(b)).
Nevertheless, even if Rule 59(e) were applicable to Perkins’ motion, the
court finds that he has failed to satisfy any of the major grounds for

reconsideration of the court’s February 7, 2013, grant of partial summary
judgment in favor of the defendant, Berg Spiral Pipe Corp. (“Berg”) (Doc. 38).
RECONSIDERATION STANDARD
Reconsideration is considered to be an “extraordinary” remedy which is
to be employed “sparingly.” Gougler v. Sirius Products, Inc., 370 F.Supp.2d
1185, 1189 (S.D. Ala. 2005) (citing 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, 2004 WL 866837, *2
(M.D.Ala. Feb.22, 2002) (“litigants should not use motions to reconsider as a
knee-jerk reaction to an adverse ruling”). Generally, courts have recognized
three grounds which justify the reconsideration of an order: (1) an
intervening change in controlling law; (2) the availability of new evidence;
and (3) the need to correct clear error or manifest injustice. Summit Medical
Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D.Ala. 2003).
LEGAL ANALYSIS
Perkins has not alleged any change in the controlling law, therefore
the basis for the requested relief is either the need to correct a clear error or
to address newly available evidence.
(1) New Evidence
Perkins submitted an affidavit with his motion for reconsideration
(Doc. 40-1) in which he avers that “he did not realize he had a viable legal

2

claim against Berg Spiral for racial discrimination until around the time he
filed his charge of discrimination in August of 2010.” Doc. 40 at 1-2.
Perkins’ affidavit clearly is not “new” evidence for the purposes of a
motion for reconsideration. His testimony was freely available for inclusion
in any or all briefs filed by plaintiff’s counsel during the pendency of Berg’s
motion for partial summary judgment. See Doc. 31. Evidence which was
available to a party during the pendency of a motion for summary judgment
may not later be introduced on a motion to reconsider. See Sussman v.
Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689 M.D. Fla. 1994) (citing Prieto
v. Storer Communications, Inc., 152 F.R.D. 654 (M.D.Fla. 1994); Morgan v.
Harris Trust and Savings Bank of Chicago, 867 F.2d 1023, 1028 (7th Cir.
1989); Shields v. Eli Lilly and Co., 704 F.Supp. 260, 262–63 (D.D.C. 1988);
Refrigeration Sales Co., Inc. v. Mitchell–Jackson, Inc., 605 F.Supp. 6, 7
(D.C.Ill. 1983)). Furthermore, a motion to reconsider which is based upon
evidence that could have been introduced during the pendency of the motion
for summary judgment will be denied without an abuse of discretion.
Morgan, 867 F.2d at 1028.
Even if the court were to consider of Perkins’ affidavit notwithstanding
the fact that it is not new evidence, the court finds that it has already
discussed this line of argument its prior order. See Doc. 38 at 6 (citing
Perkins’ opposition brief in which claimed of ignorance of any “viable” claims
until 180 days before he filed the EEOC Charge.). The court ruled that

3

Perkins’ argument was undercut by the fact that he framed the alleged
discrimination and retaliation as a pattern and practice beginning in 2008,
rather than as multiple, discrete instances of discrimination and retaliation.
See Doc. 38 at 6. Therefore, the court deems this portion of Perkins’ motion
to be an attempt to re-litigate a matter that was considered and decided at
partial summary judgment.
(2) Clear Error
Perkins also claims that the Court erred when it ruled that Perkins
had a motive to conceal his claims against Berg. Doc. 40 at 3. A motion to
reconsider based upon clear error is appropriate “when the Court has
patently misunderstood a party ... or has made a mistake, not of reasoning,
but of apprehension.” Wendy's Int'l, Inc. v. Nu–Cape Constr., Inc., 169 F.R.D.
680, 684 (M.D.Fla. 1996). The opposite side of this coin is that “[a] motion to
reconsider is not a vehicle for rehashing arguments the Court has already
rejected or for attempting to refute the basis of the Court's earlier decision.”
Lamar Advertising of Mobile, Inc. v. City of Lakeland, Fla., 189 F.R.D. 480
(M.D. Fla. Oct. 7, 1999).
With this standard in mind, the court finds that Perkins fails to
provide any credible basis for his assertion that the court based its conclusion
at partial summary judgment “upon factual and legal error.” Doc. 40 at 3.
Perkins’ claim that he “paid 100 per cent of the debts claimed by his
creditors” (Doc. 40 at 3) echoes the claim that he made in his opposition brief

4

(which was previously considered by the court); namely, that he “did not gain
advantage by failing to amend his schedules because his debts were already
being paid in full.” Doc. 36 at 4. The court understood this argument when it
was presented at partial summary judgment, but found it unavailing because
Perkins paid 100% of the claims filed under the Chapter 13 plan, not 100% of
all his debts. Several creditors did not file claims under the Chapter 13 plan,
and might have done so had they had the opportunity to file a claim upon the
disclosure of a second potential claim against Berg. Furthermore, those
creditors who did not file claims could have sought to revoke the Chapter 13
plan upon discovering a subsequent amendment to Perkins’ bankruptcy filing
that revealed the August 2010 EEOC Charge – a charge which Perkins filed
during the pendency of his bankruptcy.1 See Doc. 36 at 9.
Stated more sucinctly, the court understood Perkins’ argument;
Perkins just doesn't like the result the court reached and used this motion to
once again argue his earlier position, which is a misuse of a motion to
reconsider. See Lamar, supra.

1

As the court noted in its partial summary judgment order, the Bankruptcy Court allowed
Perkins to hire plaintiff’s counsel in February 2010 – six months before Perkins filed his
EEOC Charge against Berg. Doc. 38 at 8. Thus, while Perkins may personally have
been an unsophisticated party in terms of whether or when he was required to amend his
schedule of assets, he nevertheless enjoyed the representation of an experienced
employment discrimination attorney for a significant period of time during the pendency
of his bankruptcy and prior to filing the EEOC Charge. Plaintiff’s counsel surely
understood the importance of amending a debtor’s schedule of assets to reveal an existing
claim or potential claim at any point during the pendency of the bankruptcy. To the
extent that Perkins’ litigation strategy dispensed with such an amendment as unnecessary,
that strategy was flawed.
5

CONCLUSION
Accordingly, for the reasons enumerated above, the plaintiff’s motion
for reconsideration is hereby DENIED.
DONE and ORDERED this 28th day of February, 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

6