Giles et al v. Winn-Dixie Montgomery, LLC

Filing 45

ORDER denying 42 Motion for Reconsideration of Order and Judgment. Signed by Magistrate Judge Katherine P. Nelson on 2/13/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARY GILES and HENRY STEPHENS,
Plaintiffs,
v.
WINN-DIXIE MONTGOMERY, LLC, et al,
Defendants.

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ORDER
This action is before the Court on the following: plaintiffs’ motion
(doc.42) to reconsider the Court’s Order and Judgment entered on January
23, 2014 (docs. 40, 41); defendant’s response in opposition (doc. 43), and
plaintiffs’ reply (doc. 44). Upon consideration of the motion, the response,
and reply, and for the reasons set out below, the motion is DENIED.
Plaintiffs fail to identify the procedural avenue they employ to assert
their motion. However, it is a timely motion pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure, which provides that “[a] motion to alter or
amend a judgment must be filed no later than 28 days after the entry of the
judgment.” See, e.g., Green v. Drug Enforcement Admin., 606 F.3d 1296,
2010 WL 1993846, *1 (11th Cir. May 19, 2010) (explaining that lower courts
have almost without exception treated post-judgment motions to reconsider
as Rule 59 motions, regardless of their label).

The decision to grant or deny a motion to reconsider is left to the sound
discretion of the trial court. Chapman v. AI Transportation, 229 F.3d 1012,
1023-24 (11th Cir. 2000) (en banc). “The three primary grounds that justify
reconsideration are: ‘(1) an intervening change in the controlling law; (2) the
availability of new evidence; and (3) the need to correct clear error or prevent
manifest injustice.’” Delaware Valley Floral Group, Inc. v. Shaw Rose Nets,
LLC, 597 F.3d 1374, 1383 (Fed. Cir. 2010) (citations omitted); see also
Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146, 1151 -1152 (11th Cir.
2011) (“We note also that many cases recognize that a change in controlling
law is one of the core reasons for filing and granting a motion for
reconsideration.”) (collecting cases). However, it is well settled that a motion
for reconsideration “cannot be brought solely to relitigate issues already
raised in an earlier motion.” Harris v. Corrections Corp. of America, 2011 WL
2672553, 1 (11th Cir. July 11, 2011) citing Michael Linet, Inc. v. Vill. of
Wellington, 408 F.3d 757, 763 (11th Cir. 2005); Hughes v. Stryker Sales Corp.,
2010 WL 2608957, at *3 (S.D. Ala. June 28, 2010) (“Nor may a party properly
utilize a motion to reconsider as a vehicle for rehashing arguments
considered and rejected in the underlying order.”).
Plaintiffs move the Court to reconsider the order granting the
defendant’s motion for summary judgment and reverse said order on the
grounds, in sum, that the Court erred in finding that the store video does not
show the mop touching the floor where plaintiff stood. As a result, plaintiffs

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also argue that the Court’s timeline of the events leading up to plaintiff’s fall
is flawed. Plaintiffs further take issue with the Court’s citations to cases
regarding speculative theories of liability. In response, defendant maintains
that plaintiffs’ motion should be summarily denied on the grounds, in sum,
that plaintiffs’ motion is merely a improper rehashing of the arguments made
on summary judgment.
Giles has not presented any evidence of an intervening change in
controlling law, any new evidence which was not available at the time of the
Court’s decision, or any clear error or manifest injustice. Rather, the
objections raised by Giles in support of her motion to reconsider are
substantially similar to the arguments previously raised in opposition to the
defendant’s motion for summary judgment. The Court has already given
thorough consideration to the arguments presented and the underlying
evidence. American Home Assur. Co. v. Glenn Estess & Associates, Inc., 763
F.2d 1237, 1239 (11th Cir.1985) (cautioning against use of motion to
reconsider to allow movant “two bites at the apple”). Accordingly, the motion
to reconsider is DENIED.
DONE this 13th day of February, 2014.
/s/ Katherine P. Nelson
UNITED STATES MAGISTRATE JUDGE

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