Travis v. Secretary, DOC et al

Filing 20

ORDER denying 18 Motion for summary judgment, construed as a motion for reconsideration; denying Motion to Remand to State Court. Signed by Judge John E. Steele on 10/11/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

DORRIS WAYNE TRAVIS,
Petitioner,
v.

Case No:

2:13-cv-359-Ftm-29UAM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
___________________________________/
ORDER
This case is before the Court on Petitioner Dorris Wayne
Travis’ (“Petitioner's”) “Renewed Motion for Summary Judgment,
or Alternative Motion to Remand to State Court” (Doc. 18, filed
October 9, 2013).

The Court will construe the motion as made

pursuant to Rule 59(e) of the Federal Rules of Civil Procedure,
and as seeking reconsideration of this Court’s September 17,
2013

order

denying

Petitioner's

motion

for

summary

judgment

(Doc. 17).1 For the reasons set forth in this Order, Petitioner's

1

Rule 59(e) provides for motions to alter or amend final
judgments and mandates that such motions Amust be filed no later
than 28 days after entry of the judgment.@ Fed. R. Civ. P. 59(e).
Petitioner filed the instant motion within the twenty-eight days
allowed for a Rule 59(e) motion.
See Mahone v. Ray, 326 F.3d
1176, 1177-78 (11th Cir. 2003) (confirming the propriety of
distinguishing Rule 59(e) motions from Rule 60(b) motions based
on whether the motion was filed inside the Rule 59(e) filing
period).

motion for reconsideration is DENIED.

In addition, the Court

will not “remand” this case to state court.
The

decision

to

grant

a

motion

for

reconsideration

is

within the sound discretion of the trial court and will only be
granted to correct an abuse of discretion. Region 8 Forest Serv.
Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th
Cir. 1993).
(1)

an

There are three bases for reconsidering an order:

intervening

change

in

controlling

law;

(2)

the

availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice. Sussman v. Salem, Saxon &
Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994) (citations
omitted);

see

also

Lamar

Adver.

of

Mobile,

Inc.

v.

City

of

Lakeland, 189 F.R.D. 480, 489 (M.D. Fla. 1999).
Furthermore, a motion for reconsideration does not provide
an opportunity to simply reargue, or argue for the first time,
an issue the Court has once determined.
intended

as

mere

first

drafts,

Court opinions are “not

subject

to

revision

and

reconsideration at a litigant's pleasure.” Quaker Alloy Casting
Co.

v.

1988).

Gulfco
The

Indus.,

Inc.,

123

reconsideration

of

F.R.D.
a

282,

previous

288

(N.D.

order

is

Ill.
an

“extraordinary remedy” and “must set forth facts or law of a
strongly convincing nature to induce the court to reverse its
prior decision.” Ludwig v. Liberty Mutual Fire Ins. Co., Case

2

No. 8:03-cv-2378-T-17-MAP, 2005 WL 1053691 at *3 (M.D. Fla. Mar.
30, 2005) (citing Lamar, 189 F.R.D. at 489).
The Court has reviewed Petitioner's motion and determines
that it is without merit.

Petitioner has not identified new

evidence, pointed to a change in controlling law, or shown that
reconsideration

is

needed

manifest injustice.

to

correct

clear

error

or

prevent

Rather, Petitioner simply disagrees with

the Court’s conclusion that summary judgment is improper in a 28
U.S.C. § 2254 proceeding.
Remand of a case from federal to state court is proper in
specific circumstances: (1) a court has discretion to remand
state

law

claims

that

were

removed

along

with

one

or

more

federal question claims; (2) a court must act on a motion to
remand based on a defect in the removal procedure; and (3) a
court must remand a case over which it has no subject matter
jurisdiction. Buchner v. Fed. Dep. Ins. Co., 981 F.2d 816, 819
(5th Cir. 1993) (citing 28 U.S.C. §§ 1441(c) and 1447(c)).
case

was

not

removed

Moreover,

Petitioner

U.S.C.

2254

§

petitions.

which

to

federal

specifically
grants

court

raised

federal

from
this

state

claim

jurisdiction

This
court.

under
on

28

habeas

Accordingly, there are no grounds upon which to

“remand” this case to state court.

To the extent Petitioner

seeks a stay of this case so that he may seek resolution of

3

additional claims in state court, he must seek such by separate
motion.
DONE and ORDERED in Fort Myers, Florida, this
of October, 2013.

SA: OrlP-4 10/9/13
Copies to: All parties of record

4

11th

day