Ely v. Mobile Housing Board

Filing 88

ORDER denying 82 Motion to Alter Judgment; denying 84 Motion to Strike. Signed by Chief Judge William H. Steele on 5/9/2014. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONAVETTE ELY,
Plaintiff,
v.
MOBILE HOUSING BOARD,
Defendant.

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CIVIL ACTION 13-0105-WS-B

ORDER
This closed matter comes before the Court on Plaintiff’s Motion to Alter, Amend or
Vacate (doc. 82). Also pending is Defendant’s Motion to Strike Plaintiff’s Motion to Alter,
Amend or Vacate (doc. 84). The latter Motion is denied. If, as defendant argues, plaintiff’s
Rule 59(e) Motion is untimely, the proper course of action is for it to be denied, not stricken, as
requested by Defendant’s Motion to Strike.1
I.

Procedural History.
Plaintiff, Donavette Ely, by and through counsel, initiated this action against defendant,

Mobile Housing Board, alleging constitutional deprivations, regulatory violations and disability
discrimination based on the termination of her participation in the Section 8 Housing Choice
Voucher Program. In particular, Ely asserted a § 1983 claim alleging that the Board terminated
her housing benefits without due process; brought claims alleging that the Board violated HUD
regulations and requirements by not explaining the grounds for termination, informing her of her
1

See generally Morgan v. Bill Vann Co., 2013 WL 4657554, *1 n.1 (S.D. Ala.
Aug. 30, 2013) (“motions to strike should not be filed in federal court[] as a kneejerk reaction
whenever a litigant is unhappy with either the contents of an exhibit or the other side’s
arguments”); Zukowski v. Foss Maritime Co., 2013 WL 1966001, *3 (S.D. Ala. May 10, 2013)
(“Motions to strike are generally disfavored as time wasters that distract the court from the
merits of a party’s claim.”) (citations omitted); Essex Ins. Co. v. Foley, 827 F. Supp.2d 1326,
1327 n.1 (S.D. Ala. 2011) (explaining why it is disfavored and generally inappropriate to strike
arguments or other portions of filings simply because they lack merit, or “may suffer from a
logical or factual defect”) (citation omitted).

hearing rights, or providing an impartial hearing officer; and brought claims of disability
discrimination / failure to provide reasonable accommodation, pursuant to the Fair Housing
Amendments Act of 1988 (“FHAA”) and Title II of the Americans with Disabilities Act
(“ADA”).
On April 7, 2014, after the parties were given a full and fair opportunity to be heard, the
undersigned entered an Order (doc. 80) and Judgment (doc. 81) granting the Board’s Motion for
Summary Judgment and dismissing this action with prejudice. In summary, the 22-page Order
found that Ely’s constitutional claims failed as a matter of law because she lacked a property
interest in her expired Section 8 housing voucher; that Ely’s claims for violations of HUD
regulations failed because certain of the cited provisions were inapplicable and the Board had
complied with the others; and Ely’s claims under the FHAA and ADA failed for a variety of
reasons, including most notably a lack of evidence of a causal link between Ely’s son’s alleged
disability and Ely’s desire for a voucher extension, and a lack of evidence that Ely ever placed
the Board on notice that she was requesting a voucher extension as a reasonable accommodation
for that disability.
On May 6, 2014, some 29 days after entry of the April 7 Order and Judgment, plaintiff
filed a Motion to Alter, Amend or Vacate (doc. 82), purportedly under Rule 59(e), Fed.R.Civ.P.
That same morning, plaintiff filed a Notice of Appeal (doc. 83) of the April 7 Order and
Judgment to the Eleventh Circuit Court of Appeals.2
II.

Analysis.
Plaintiff’s Motion to Alter, Amend or Vacate is untimely on its face. The Federal Rules

of Civil Procedure specify that “[a] motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.” Rule 59(e), Fed.R.Civ.P. They are equally clear
that district courts are not empowered to enlarge that filing period. See, e.g., Green v. Drug
2

Plaintiff’s filing of a Notice of Appeal mere hours after filing her Motion to Alter,
Amend or Vacate does not divest this Court of jurisdiction to resolve the Rule 59(e) Motion.
See, e.g., Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003) (filing of a notice of appeal “does
not prevent the district court from taking action in furtherance of the appeal”) (citation and
internal quotation marks omitted); Rule 4(a)(4)(B)(i), Fed.R.App.P. (“If a party files a notice of
appeal after the court announces or enters a judgment – but before it disposes of any motion
listed in Rule 4(a)(4)(A) – the notice becomes effective to appeal a judgment or order … when
the order disposing of the last such remaining motion is entered.”).

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Enforcement Admin., 606 F.3d 1296, 1300 (11th Cir. 2010) (“To help preserve the finality of
judgments, a court may not extend the time to file a Rule 59(e) motion.”); Rule 6(b)(2),
Fed.R.Civ.P. (“A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b),
(d), and (e), and 60(b).”). Court records confirm that plaintiff did not file her Rule 59(e) Motion
until May 6, 2014. The 28-day deadline prescribed by Rule 59(e) expired on May 5, 2014;
therefore, plaintiff’s Rule 59(e) Motion is and must be denied as untimely.
Notwithstanding this summary adjudication of plaintiff’s Rule 59(e) Motion, the Court
nonetheless takes this opportunity to debunk certain misstatements, inaccuracies and distortions
set forth in the Motion.
Preliminarily, the Court observes that Ely’s Motion disregards the stringent legal standard
for relief governing her motion. A dissatisfied federal litigant is not entitled to reconsideration of
anything and everything, merely because she disagrees with a court’s ruling. To the contrary,
“[t]he only grounds for granting a Rule 59 motion are newly-discovered evidence or manifest
errors of law or fact.” United States v. Marion, 562 F.3d 1330, 1335 (11th Cir. 2009) (citation
and internal marks omitted); see also Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(similar). Moreover, authority is legion for the proposition that motions to reconsider “may not
be used to relitigate old matters, or to raise arguments or present evidence that could have been
raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128
S.Ct. 2605, 171 L.Ed.2d 570 (2008) (citation omitted).3 Rule 59(e) motions do not afford an
unsuccessful litigant “two bites at the apple.” American Home Assur. Co. v. Glenn Estess &
3

See also Smith v. Ocwen Financial, 2012 WL 3758378, *2 (11th Cir. Aug. 30,
2012) (“A motion for reconsideration cannot be used to relitigate old matters, raise arguments, or
present evidence that could have been raised prior to the entry of judgment.”) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 740 (11th Cir. 2010) (similar); Kight v. IPD Printing &
Distributing, Inc., 2011 WL 2015055, *1 (11th Cir. May 24, 2011) (motion for reconsideration
properly denied where movant “merely attempted to relitigate old matters and presented
evidence that could have been raised prior to the entry of judgment.”); Morton v. Astrue, 2010
WL 2130613, *3 (11th Cir. May 27, 2010) (“In his motion to alter or amend judgment, …
Morton merely attempted to reargue factual issues previously decided by the district court. The
district court therefore did not abuse its discretion in denying the motion.”); Dyas v. City of
Fairhope, 2009 WL 5062367, *3 (S.D. Ala. Dec. 23, 2009) (“Motions to reconsider … do not
exist to permit losing parties to prop up arguments previously made or to inject new ones, nor to
provide evidence or authority previously omitted. They do not, in short, serve to relieve a party
of the consequences of its original, limited presentation.”).

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Associates, Inc., 763 F.2d 1237, 1239 (11th Cir. 1985). Nor are such motions properly filed “as a
kneejerk reaction by a dissatisfied federal court loser.” Lee v. Thomas, 2012 WL 3137901, *2
(S.D. Ala. Aug. 1, 2012).4 “They are neither appeal substitutes nor a ‘dry run’ to test arguments
in anticipation of a forthcoming appeal.” Id. Plaintiff has not conformed her Rule 59(e) Motion
to this narrowly circumscribed legal standard.
Nonetheless, plaintiff’s Motion is steeped in unflattering rhetoric that the April 7 Order
“demonstrates a misunderstanding of the legal standards,” “misinterprets federal law and
regulations,” “makes erroneous legal conclusions based on its flawed interpretations,” “has a
basic misunderstanding of the facts,” and so on. (Doc. 82, at 1-2.) This Court will not devote
scarce judicial resources to parsing such conclusory generalities; however, this Order will
address three specific assignments of error presented in plaintiff’s Motion.
First, plaintiff’s Motion takes the undersigned to task for what she calls “a fundamental
error in classifying the voucher issued on July 19, 2010 as an extension of a previous voucher
when it clearly was a newly issued voucher.” (Doc. 82, at 2 n.1.) This is a brand-new, but
previously available, argument, and hence inappropriate for a motion to reconsider. A
cornerstone of the Board’s summary judgment motion was that the July 19 voucher was an
extension of the May 13 voucher, and that Ely’s 120-day period (60 days for the original
voucher, plus up to 60 days for extensions) to shop that voucher therefore expired on September
18, 2010. (See doc. 63, at 5, 9, 16, 23, 24-27.) If plaintiff felt that the July 19 voucher should
have been classified as a “new voucher” (restarting the 120-day clock) rather than an extension
of a previous voucher (not restarting the clock), then she should have presented that argument
and appropriate record citations in her summary judgment response. She failed to do so. Indeed,
4

See also Thalassinos v. Adair, 2013 WL 3231373, *2 (S.D. Ala. June 26, 2013)
(“A Motion to Reconsider is not appropriately filed merely because a litigant does not agree with
(or does not wish to abide by) the court’s ruling.”); Hughes v. Stryker Sales Corp., 2010 WL
2608957, *2 (S.D. Ala. June 28, 2010) (rejecting notion that motions to reconsider “are
appropriate whenever the losing party thinks the District Court got it wrong,” but finding that
they are instead “an extraordinary remedy” that must be “employed sparingly”) (citations
omitted); Garrett v. Stanton, 2010 WL 320492, *3 (S.D. Ala. Jan. 18, 2010) (“Far too often,
litigants operate under the flawed assumption that any adverse ruling on a dispositive motion
confers upon them license … to relitigate issues that have already been decided, to champion
new arguments that could have been made before, and otherwise to attempt a ‘do-over’ to erase a
disappointing outcome. This is improper.”).

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nowhere in plaintiff’s 30-page summary judgment brief found at document 72 does she argue
that the July 19 voucher constituted a “new voucher” for purposes of the 60-day shopping period
and 60-day extensions. Nowhere in that brief does plaintiff take issue with defendant’s emphatic
framing of the July 19 voucher as an extension of the May 13 voucher. It is not a proper basis
for Rule 59(e) relief – or for criticizing the April 7 Order – for plaintiff now to argue for the first
time that this Court should have rejected the Board’s characterization of the July 19 voucher.
There is another, fundamental problem with plaintiff’s argument about the July 19
voucher. The summary judgment record confirms that the Board issued the July 19 voucher after
Ely made a written request on July 12, 2010 (the expiration date of the May 13 voucher), reading
as follows: “I am requesting an extension on my four bedroom voucher.” (Doc. 64, Exh. L
(emphasis added).) She even crossed out the words “Tenant Complaint” at the top of the form
and wrote “voucher extension request.” (Id.) Issuance of the July 19 voucher followed directly
from the Board granting plaintiff’s extension request. (Doc. 64, Exh. K.)5 Even now, plaintiff
fails to explain how these facts (and her own words) support a reasonable inference that the July
19 voucher (which was substantively identical to its May 13 predecessor) may be classified as a
new voucher subject to a new shopping period under applicable rules and regulations, rather than
extension of the identical voucher that expired on the date that Ely submitted a written request
for what she termed an “extension” of the expiring voucher. Her July 12 “extension request”
specified that Ely had experienced “a hard time locating 4 bedroom in our area” and that she
therefore needed more time. How can that communication rationally be viewed as anything
other than an extension request? How can the Board’s granting of that request be rationally
viewed as anything other than an extension of the May 13 voucher? Plaintiff does not say. This
threadbare, unsupported argument would not have been credited on summary judgment (had it
been made), and it will not be credited now.

5

Furthermore, in her Complaint, plaintiff repeatedly alleged that her discrimination
claims were predicated on, among other things, “the Defendant[’s] refus[al] to provide the
Plaintiff with any additional extensions for her four (4) bedroom voucher.” (Doc. 1, ¶¶ 35, 39.)
Obviously, there could be no additional extensions unless there had already been at least one
extension (i.e., the July 19 voucher). Thus, in her Rule 59(e) Motion, plaintiff effectively speaks
out of both sides of her mouth by asking the Court to disregard her own allegations and
statements.

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Second, plaintiff requests relief from the April 7 Order and Judgment because she says
this Court incorrectly accepted as undisputed certain of the Board’s factual allegations. She
provides two examples, neither of which has merit. Specifically, plaintiff faults the April 7
Order for crediting the assertion that “MHB followed all of the pertinent regulations and
requirements of federal law.” (Doc. 82, at 3.) Here, plaintiff commingles fact and law. The
April 7 Order explained in detail why uncontroverted record facts showed that the Board was in
compliance with applicable regulations and requirements. (See doc. 80, at 14-17.) If plaintiff
thinks certain material facts underlying those determinations are disputed, then it is incumbent on
her (i) to identify those specific facts, (ii) to point to record evidence from which a reasonable
factfinder could find otherwise, and (iii) to explain how those facts establish a regulatory
violation. In lieu of doing so, plaintiff simply rests on a blanket accusation that the Court got it
wrong.
Similarly, Ely contends that the April 7 Order is factually erroneous because “the
Plaintiff has consistently maintained that MHB denied her requests for an extension of the her
[sic] voucher based on a reasonable accommodation request.” (Doc. 82, at 4.) Pages 19 through
21 of the April 7 Order reveal the fallacy in plaintiff’s request for reconsideration on this basis.
Indeed, plaintiff has never submitted a shred of evidence linking her alleged difficulties in
locating a four-bedroom unit between May and September 2010 to her son’s ostensible
disability. Nor has she ever shown that she placed the Board on notice – or that the Board had
any reason to believe – that her requests for extension of the voucher during and after that period
were related to such disability. A fact can only be viewed as “disputed” on summary judgment if
there is some record basis for the dispute. Counsel’s ipse dixit is never sufficient. While
plaintiff’s counsel maintains that the April 7 Order “demonstrates a misunderstanding of the
legal standards required in summary judgments” (doc. 82, at 1), binding precedent is clear that
courts may not simply guess or speculate that uncited supporting facts actually exist to bolster a
nonmovant’s position. See, e.g., Avenue CLO Fund, Ltd. v. Bank of America, N.A., 723 F.3d
1287, 1294 (11th Cir. 2013) (“All reasonable inferences arising from the undisputed facts should
be made in favor of the nonmovant, but an inference based on speculation and conjecture is not
reasonable.”) (citation omitted); Myers v. Bowman, 713 F.3d 1319, 1327 (11th Cir. 2013)
(rejecting nonmovant’s argument “based upon speculation and conclusory allegations,” and
remarking that “[t]his court has consistently held that conclusory allegations without specific

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supporting facts have no probative value” on summary judgment) (citation omitted); Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“For factual issues to be considered genuine,
they must have a real basis in the record. … [M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.”).
In her Rule 59(e) Motion, plaintiff insists that “Ely made the request for the reasonable
accommodation of a voucher extension because she had difficulty finding an acceptable qualified
housing unit due to her son’s disability.” (Doc. 82, at 5.) But where is the evidence from which
a reasonable fact finder could conclude either (i) that Ely’s troubles in finding a four-bedroom
unit in the summer of 2010 were “due to her son’s disability,” or (ii) that the Board had any
knowledge or reason to believe that Ely’s request for extension was prompted by her difficulties
“due to her son’s disability”? Plaintiff has never cited any such evidence, and the Court’s review
of the summary judgment record revealed no such evidence.6 Certainly, Ely’s written “voucher
extension request” of July 12, 2010 made no reference to her son’s health condition as having
any bearing on her “hard time locating 4 bedroom in our area.” (Doc. 64, Exh. L.) There could
be myriad reasons (most of them completely unrelated to her child’s asthma) why Ely might
need or want more time to shop her voucher. Plaintiff offers no evidence to support her
argument that both the Board and a reasonable fact finder at trial could or should view this
request as necessarily implicating her son’s purported disability. Instead, plaintiff falls back on

6

In her Rule 59(e) Motion, plaintiff unhelpfully confuses the issue by cutting and
pasting a section of her summary judgment brief in which she argued that “Ely made written
request on numerous occasions, and provided requested letters from her son’s doctors regarding
his disability and the reasonable accommodation request.” (Doc. 82, at 5; see also doc. 72, at
23.) This “reasonable accommodation request” to which Ely alludes is her request for a fourbedroom voucher, which the Board ultimately provided. There are no written requests, letters or
other materials in the record showing that Ely requested an extension of the voucher as a
reasonable accommodation for her son’s asthma, much less any correspondence or doctor’s
reports relating to that specific request. Just because Ely requested a four-bedroom voucher as a
reasonable accommodation for a disability does not raise a factual inference that every other
request she ever made to the Board was also a request for reasonable accommodation for a
disability. Thus, plaintiff mixes apples with oranges to advance a faulty Rule 59(e) Motion, just
as she did on summary judgment.

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conclusory allegations that are patently insufficient on summary judgment, much less for Rule
59(e) relief.7
Plaintiff’s Rule 59(e) Motion continues along this line of argument by asserting that
“MHB’s rigid adherence to its policy of denying Section 8 voucher extensions and increases in
voucher amounts to those who are having difficulty finding suitable housing due to a disability
constituted a statutory violation.” (Doc. 82, at 9.) Once again, this argument fails because there
is no record evidence that Ely was “having difficulty finding suitable housing due to a disability”
or that, even if she was, the Board had any reason to believe that her son’s asthma was (i) the
source of her difficulties and (ii) the factual basis of her voucher extension request. Such an
argument also improperly rehashes summary judgment proceedings because it is a verbatim
repetition of an argument in plaintiff’s summary judgment brief that this Court considered and
rejected. (See doc. 72, at 27 (raising same argument word for word); doc. 80, at 20 n.22
(rejecting same argument on the merits).)8

7

Plaintiff digs the hole deeper in a footnote in her Rule 59(e) Motion. She says,
“The Court would have Ely use specific language which is not required by law.” (Doc. 82, at 6
n.3.) This criticism is expressly negated by page 19 of the April 7 Order, in which this Court
recognized that “a request for accommodation need not employ ‘magic words,’” but that the
defendant must have enough information to be on notice that a reasonable accommodation is
being requested. (Doc. 80, at 19.) The April 7 Order applied the correct legal standard, yet
plaintiff’s contrarian argument bafflingly ignores the Order’s plain text. Next, plaintiff says “the
analysis used by the court defies logic or common sense.” (Doc. 82, at 6 n.3.) What would be
“logical” about holding a housing board liable under disability discrimination laws for failing to
grant a voucher extension to a client as a reasonable accommodation for a family member’s
disability when the board had no information or reason to know that the extension request had
anything to do with said disability, and no reason to believe that said disability had in any way
impeded the client’s ability to search for and locate suitable housing within the voucher period?
Plaintiff does not say. The icing on the cake is plaintiff’s argument that, “It is clear based on the
facts that Ely made clear to the housing authority that she needed additional time and was
requesting an extension based on a reasonable accommodation of her sons [sic] disability.”
(Doc. 82, at 6 n.3.) What facts make that “clear”? Again, plaintiff does not say, and the Court’s
review of the summary judgment record revealed none. Although plaintiff purports to be
seeking “the benefit of the doubt” (id.), what she actually requests is that the Court engage in
wholesale conjecture about nonexistent record facts to enable her to defeat summary judgment.
The Federal Rules of Civil Procedure forbid such indulgences on Rule 56 review.
8

Besides, as discussed infra, the record lacks a scintilla of evidence to support
plaintiff’s contention that the Board had a “policy of denying Section 8 voucher extensions … to
(Continued)
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Third, plaintiff seeks reconsideration of the April 7 Order based on the theory that “MHB
violated Ely’s rights and federal law by automatically terminating her from the section 8 program
upon the expiration of her voucher without allowing her to apply for or be considered for an
extension.” (Doc. 82, at 10.) This argument withers under scrutiny. As an initial matter,
nowhere in the Complaint does plaintiff assert a claim predicated on the Board’s purported
“automatic termination” of Ely from the Section 8 program and its purported refusal to allow her
to apply for an extension.9 A motion to reconsider is not a proper platform for de facto
amendment of the pleadings. Besides, even if this claim had been properly pleaded in the
Complaint (it was not), plaintiff never mentioned it in her summary judgment brief, such that she
is improperly using her motion to reconsider to advance for the first time a previously available
argument. (See doc. 72, at 8-18.) Furthermore, plaintiff points to no record facts supporting a
reasonable inference that the Board ever refused to allow her to apply for an extension or refused
to consider any such request that she made.10

those who are having difficulty finding suitable housing due to a disability.” Plaintiff cannot
obtain reconsideration by playing fast and loose with the record facts.
9

In the Complaint, Ely alleged that the Board violated her rights and federal
housing law by not “first advising her of the specific grounds,” not providing her “with an
opportunity to examine any documents or records,” failing to inform Ely of her “option to pursue
a formal hearing if settlement is not reached,” failing “to provide an impartial hearing officer,”
and rendering a decision “based completely on hearsay evidence.” (Doc. 1, ¶¶ 24-27.)
10

To be sure, plaintiff’s argument is long on rhetoric that “MHB had the
responsibility to at least allow the request to be made by Ely, and consider the request.” (Doc.
82, at 13.) The problem is that she points to no evidence that the Board refused to allow her to
make a request, or to consider any such request. At most, plaintiff states in her Rule 59(e)
Motion as follows: “[I]n her Deposition, Ms. Griffin states that the housing authority could not
extend the deadline beyond 120 days even when a reasonable accommodation [sic], and has a
policy to that effect.” (Doc. 82, at 6.) But plaintiff provides no pinpoint citation to support this
allegation, and review of Griffin’s 71-page deposition transcript (found at document 73) reveals
no such testimony. Of course, a Rule 59(e) Motion may not predicated on wishful thinking or
imagined testimony.

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III.

Conclusion.
For all of the foregoing reasons, Plaintiff’s Motion to Alter, Amend or Vacate (doc. 82) is

denied. Defendant’s Motion to Strike Plaintiff’s Motion to Alter, Amend or Vacate (doc. 84) is
likewise denied.
DONE and ORDERED this 9th day of May, 2014.
s/WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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