SMALL v. CEMEX SOUTHEAST LLC et al
ORDER finding as moot 37 Motion to Stay; denying 38 Motion for Reconsideration. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 5/1/15 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
CEMEX SOUTHEAST, LLC
ROBERT STAMBACK, AND
No. 5:12-CV-507 (CAR)
ORDER ON MOTION FOR RECONSIDERATION OR IN THE ALTERNATIVE,
PETITION FOR INTERLOCUTORY APPEAL
Before the Court is Defendants’ Motion for Reconsideration or in the Alternative,
Petition for Interlocutory Appeal [Doc. 38] of this Court’s Order denying Defendants’
motion for summary judgment on Plaintiff’s claim that he was terminated based on his
race in violation of 42 U.S.C. § 1981 [Doc. 35].1 In that Order, the Court found, that
Plaintiff had presented genuine issues of material fact as to whether Defendants
terminated Plaintiff based on his race. In the instant Motion, Defendants request that
this Court reconsider its findings.2 Plaintiff has filed a Response to Defendant’s Motion
Defendants filed a Motion to Stay Trial and Pre‐Trial Proceedings [Doc. 37] to allow
Defendants’ Motion for Reconsideration to be fully briefed and thoroughly considered by this
Court. The Court, within its discretion, rescheduled the trial to a later term, and having ruled on
Defendants’ Motion herein, the Court finds Defendants’ Motion MOOT.
2 Rule 60(a) allows a court on its own initiative to correct clerical errors in its orders. Fed. R. Civ.
P. 60(a). In reviewing its Order, the Court recognized a scrivener’s error. Footnote seventeen
should cite to Mr. Stamback’s Account of Plaintiff’s Termination, Doc. 26‐3, at 25. Footnote
eighteen should cite to Mr. Small’s Deposition, Doc. 31‐1, at 132.
[Doc. 39], and the Motion is now ripe for consideration.
Motion For Reconsideration
Local Rule 7.6 provides that “[m]otions for reconsideration shall not be filed as a
matter of routine practice.”3 And they should be granted only if: (1) there has been an
intervening change in controlling law; (2) new evidence has been discovered; or (3)
reconsideration is needed to correct clear error or prevent manifest injustice.4
Reconsideration of a prior order is an extraordinary remedy.5 Moreover, “a motion for
reconsideration does not provide an opportunity to simply reargue an issue the Court
has once determined. Court opinions are not intended as mere first drafts, subject to
revision and reconsideration at a litigantʹs pleasure.”6
In their Motion for Reconsideration, Defendants contend that the Court inserted
facts not in evidence, erred in its analysis, and failed to consider a properly presented
argument. After thoroughly considering Defendants’ Motion, Plaintiff’s Response, and
the relevant case law, the Court finds Defendants have not made the requisite showing
that the law has changed, that new evidence has been discovered, that the Court made a
clear error of law, or that the Order was manifestly unjust. Therefore, as no grounds
exist for reconsideration, Defendants’ Motion is hereby DENIED.
M.D. Ga. L. R. 7.6.
Ctr. for Biological Diversity v. Hamilton, 385 F. Supp. 2d 1330, 1337 (N.D. Ga. 2005).
5 Bell v. Houston Cnty., Georgia, No. 5:04‐CV‐390 (HL), 2007 WL 4146205, at *2 (M.D. Ga. 2007).
6 Am. Assʹn of People with Disabilities v. Hood, 278 F. Supp. 2d. 1337, 1340 (M.D. Fla. 2003)
(quotation and citation omitted).
Defendants have asked this Court to certify its Order denying Defendant’s
motion for summary judgment for interlocutory appeal. The certification of
interlocutory appeals from a district court to the court of appeals is governed by 28
U.S.C. § 1292(b). By its terms, § 1292(b) authorizes an appeal of an interlocutory order
only where (1) “such order involves a controlling question of law” (2) “as to which
there is substantial ground for difference of opinion” and (3) where “an immediate
appeal from the order may materially advance the termination of the litigation.”7 And a
litigant seeking § 1292(b) certification must satisfy all of these elements.8
Defendants contend the Court sat as a “super‐personnel department” and
substituted its judgment for that of the Defendants; they also contend that there is split
of authority on how Elrod v. Sears Roebuck, and Co.9 and its progeny should be applied. 10
However, the Court is unconvinced. In its Order, the Court found that there are genuine
issues of material fact as to whether Defendants’ stated reason for Plaintiff’s
termination—violation of the zero‐tolerance policy11—is unworthy of credence, and
thus should be decided by a jury. Because Defendants have not presented an issue
28 U.S.C. § 1292(b); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1264 (11th Cir. 2004)
(describing these three criteria as the “core requirement” for § 1292(b) certification).
8 OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1359 (11th Cir. 2008)
9 939 F.2d 1466 (11th Cir. 1991).
10 Specifically, the Defendants question whether the Court “need not respect the judgment of a
decision maker in analyzing the timing of decisions” and cites Sussman v. Salem, Saxon &
Nielsen, P.A., 8181 F. Supp. 1510, 1514‐15 (M.D. Fla. 1993).
11 Defs’ MSJ, Doc. 25‐1 at 12, 14.
involving a pure question of controlling law, 12 they have not met the standard for an
interlocutory appeal. Accordingly, Defendants’ Motion is hereby DENIED.
For the aforementioned reasons, Defendants’ Motion [Doc. 38] is DENIED.
SO ORDERED, this 1st day of May, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL,
UNITED STATES DISTRICT JUDGE
See Conseco, 381 F.3d at 1259 (“The antithesis of a proper § 1292(b) appeal is one that turns on
whether there is a genuine issue of fact ...”).
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