Crocker v. Beatty et al

Filing 296

ORDER denying 285 Motion for Reconsideration. Signed by Judge Robin L. Rosenberg on 11/29/2018. See attached document for full details. (bkd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 2:16-CV-14162-ROSENBERG/MAYNARD
JAMES P. CROCKER,
Plaintiff,
v.
DEPUTY SHERIFF STEVEN
ERIC BEATTY, et al.,
Defendants.
_______________________________/
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
This matter is before the Court on Plaintiff’s Motion for Reconsideration [DE 285]. The
Motion has been fully briefed. For the reasons set forth below, the Motion is denied.
Plaintiff’s Motion for Reconsideration stems from the Court’s prior Order Granting in Part
and Denying in Part Defendants’ Motion for Summary Judgment [DE 176]. Plaintiff seeks
reconsideration of the Court’s prior Order four hundred and forty days after the Order was entered.
During that four hundred and forty days, the Order was affirmed on appeal,1 the Court conducted a
jury trial on Plaintiff’s claims that survived the Order, and Plaintiff prevailed at trial.
As an initial matter, Plaintiff’s Motion for Reconsideration is denied as untimely. Pursuant
to Rule 60(c) of the Federal Rules of Civil Procedure, a Motion for Reconsideration of an order
must be filed “within a reasonable time.” A delay of four hundred and forty days is not a reasonable
time. E.g., Days Inn Worldwide Inc. v. Patel, 445 F.3d 899, 906 (6th Cir. 2006) (finding that eleven
months was not a reasonable time); see also In re Matthews, No. 13-BK-14761, 2015 WL 1778297
(Bankr. M.D. Fla. Apr. 15, 2015) (finding that even a delay of a few weeks was unreasonable);

1 Only a portion of the Order was appealed—other portions have yet to receive appellate review.

Pouyeh v. Univ. of Ala., No. 12-CV-4198, 2014 WL 11353141 (N.D. Ala. Mar. 11, 2014) (finding
that a delay of eight months was unreasonable); Nat’l Cap. Mgmt., LLC v. Herman, No. 11-CV-9,
2011 WL 4531736 (Bankr. M.D. Fla. Sept. 29, 2011) (seven months unreasonable). Even though
this case was stayed pending Defendants’ interlocutory appeal, “the pendency of an appeal does not
toll the time period in which a complainant has to file a [motion for reconsideration].” Stoecklin v.
U.S., No. 89-CIV-182, 1997 WL 1038210, at *3 (M.D. Fla. Nov. 7, 1997); see also Pierce v. Kyle,
535 F. App’x 783, 785 (11th Cir. 2013). A “reasonable time” is determined by the facts of each
case, Nucor Corp. v. Nebraska Public Power Dist., 999 F.2d 372, 374 (8th Cir. 1993), and, here,
Plaintiff could have filed his Motion for Reconsideration before Defendants’ appeal, during
Defendants’ appeal,2 or immediately after Defendants’ appeal. Plaintiff elected not to do so, instead
choosing to wait until almost three months after this case returned from appeal to file his Motion.
For all of the foregoing reasons, Plaintiff’s Motion for Reconsideration is untimely and is denied.
Even if the Court were to put aside the untimeliness of Plaintiff’s Motion, however, the
Motion must still be denied as it is premised upon improper grounds. “The law is clear that
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.” Prieto v. Storer Comms., Inc., 152 F.R.D.
654, 655 (M.D. Fla. 1994) (emphasis added) (citing Morgan v. Harris Trust & Savings Bank, 867
F.2d 1023, 1028 (7th Cir. 1989)). Nonetheless, Plaintiff’s Motion is premised upon trial testimony
from both Defendant Beatty and an expert, Dr. Hough. Plaintiff chose not to depose Dr. Hough in
this case. Plaintiff cannot elect not to depose Dr. Hough and then, after eliciting testimony from him
at trial, use that testimony as grounds to reconsider summary judgment. Id.; see also Pubs.
Resource, Inc. v. Walker-Davis Pubs., 762 F.2d 557, 561 (7th Cir. 1985) (motion for
2 The portion of the Court’s prior Order challenged in the Motion for Reconsideration was not appealed.

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reconsideration is improper vehicle to introduce new evidence which could have been adduced
during summary judgment proceeding).
Similarly, Plaintiff was deposed in this case, and Plaintiff’s testimony at trial did not deviate
from his deposition testimony. At trial, Defendant Beatty testified that he believed his seizure of
Plaintiff’s iPhone was consistent with his training.3 This was not newly discovered evidence (a
permissible ground for reconsideration) nor was this a shocking revelation at trial—Defendant
Beatty previously testified in his deposition that he believed his actions were consistent with his
training. E.g., DE 154-5 at 32-52. By way of example Defendant Beatty testified at his deposition
as follows:
Q: So as it stands right now, you still believe that [your seizure was] permissible,
right?
A: Yes, sir.
Q: And you wouldn’t hesitate to do that again?
A: No, sir.
Id. at 50. Even if Defendant Beatty’s testimony at trial was new evidence, Plaintiff still could not
use such testimony in support of his Motion for Reconsideration because of Plaintiff’s prior
opportunity to depose Defendant Beatty. Prieto, 152 F.R.D. at 655 (“If the evidence became
available to the plaintiff well before the motion for reconsideration, the evidence will not be
considered.”); Keene Corp. v. Int’l Fidelity Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1982)
(“The non-movant has an affirmative duty to come forward to meet a properly supported motion for
summary judgment . . . [a motion for reconsideration] cannot in any case be employed as a vehicle
to introduce new evidence that could have been adduced during pendency of the summary judgment
3 Plaintiff has not attached or cited to a trial transcript in his Motion, however, the statements at trial referenced herein
are, according to the Court’s recollection, abundantly supported in the trial record.

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motion.”) (aff’d, 736 F.2d 388). Plaintiff presses no argument that he was somehow prevented at
summary judgment from exploring certain topics related to training with Defendant Beatty—this is
fatal to Plaintiff’s argument. See Engelhard Indus v. Research Instrumental Corp., 324 F.2d 347,
352 (9th Cir. 1963) (on a motion to reconsider a party is “obligated to show not only that his
evidence was newly discovered or unknown to it . . . but also that it could not have been
discovered.” (emphasis added)).4 Finally, Plaintiff was permitted a plethora of discovery in this
case from the entity that employed Defendant Beatty and provided him with training—Defendant
Beatty is but one employee of that entity. See City of Canton v. Harris, 489 U.S. 378, 390-91 (1989)
(“That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on
the city.”). The Court’s analysis on summary judgment extended far beyond a single employee and
examined, in great detail, Plaintiff’s evidence of Defendants’ policies and training. The Court sees
no reason to reconsider.
For the foregoing reasons, it is ORDERED AND ADJUDGED that Plaintiff’s Motion for
Reconsideration [DE 285] is DENIED.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 28th day of
November, 2018.

________________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to Counsel of Record

4 It is unclear whether Plaintiff also attempts to rely upon a media report issued after the conclusion of trial in this case
reporting that the Defendant Sheriff’s Office would provide new and additional training to its employees. If Plaintiff
did intend to rely upon this media report, it would be inadmissible evidence as a subsequent remedial measure. Fed. R.
Evid. 407. But, in any event, this evidence falls woefully short of the sort of evidence necessary to reconsider an order
on summary judgment four hundred and forty days after the order was entered.

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