HOLLINGSWORTH v LIBERTY MUTUAL INSURANCE COMPANY

Filing 33

ORDER denying 32 Motion to Alter Judgment and denying 32 Motion for Reconsideration. The Court's previous Order stands and the Clerk's Entry of Judgment shall remain unaltered. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 03/14/2019 (chc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MIA HOLLINGSWORTH,
Plaintiff,
CIVIL ACTION NO.
5:17-cv-00494-TES

v.
LM INSURANCE CORPORATION,
Defendant.

ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE
MOTION FOR RECONSIDERATION OR IN THE ALTERNATIVE
A MOTION TO ALTER OR AMEND JUDGMENT

Plaintiff, Mia Hollingsworth, seeks reconsideration of the Court’s Order [Doc. 30]
granting summary judgment to LM Insurance Corporation (“LM”), or in the form of
alternative relief, she seeks an alteration or amendment to the Court’s Entry of Judgment
[Doc. 31]. After consideration of her arguments, the Court DENIES Plaintiff’s requested
relief for the following reasons.
DISCUSSION
A.

Standard of Review

Pursuant to local rules, “[m]otions for reconsideration shall not be filed as a matter
of routine practice.” LR 7.6, MDGa. Accordingly, such motions are appropriate only if
Plaintiff demonstrates that “(1) there has been an intervening change in the law, (2) new
evidence has been discovered that was not previously available to the parties at the time

the original order was entered, or (3) reconsideration is necessary to correct a clear error
of law or prevent manifest injustice.” 1 Bryant v. Walker, No. 5:10-CV-84, 2010 WL 2687590,
at *1 (M.D. Ga. July 1, 2010) (quoting Wallace v. Ga. Dep’t of Transp., No. 7:04-cv-78, 2006
WL 1582409, at *2 (M.D. Ga. June 6, 2006)). A motion for reconsideration may not be used
to relitigate old matters or reargue settled issues. See id.; Smith v. Ocwen Fin., 488 F. App’x
426, 428 (11th Cir. 2012).
B.

Plaintiff’s Motion for Reconsideration or in the Alternative a Motion to
Alter or Amend Judgment [Doc. 32]

In her motion, Plaintiff states that she “seeks the opportunity to bring to the
attention of the Court evidence that does in fact show the cost of new construction and [to]
properly lay the foundation for the Court why the evidence is admissible.” [Doc. 32-1 at p.
1]. As to the estimates for new construction costs from the Home Builders Association of
Middle Georgia, Plaintiff says that while she did obtain those estimates as hearsay, “there
is other evidence [(five listings for new construction)] showing the cost of new construction
that was proffered to the Court in an admissible form of evidence.” [Id. at p. 2]. This
argument simply misses the mark.

This Court’s local rules also state that “[t]he following motions may be considered by the Court
immediately after filing: motions for extension of time, motions to exceed the page limitation, motions for
hearings, motions to file surreply briefs, motions which clearly have no basis in law, and such other motions as
the Court may otherwise determine from the parties to be unopposed or in which the Court may clearly determine
from the record before it the relative legal positions of the parties so as to obviate the need for the filing of opposition
thereto.” LR 7.7, MDGa (emphasis added).

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Plaintiff argues, “[t]he asking prices of new construction in turn can be used to
calculate that the cost per square foot of new construction in the area was in fact between
$100.00–$112.00 per square foot.” [Id.]. While these calculations are concordant with the
inadmissible figures provided by the unnamed secretary from the Middle Georgia
Homebuilders Association, they do not produce the value Plaintiff needed to overcome
LM’s summary judgment motion. In her argument urging the Court to reconsider its
Order, Plaintiff clearly admits that not only were the “five listings for new construction”
just “asking prices,” they presumably included both the price for the land on which the five
houses sit as well as improvements to the land itself. [Id.]. Because Plaintiff already owns
the real property at 988 High Street, these estimates are not relevant and she definitively
cannot show the costs of new construction stripped to construction materials and labor.
[Doc. 30 at pp. 17–18]. Each house’s “asking price” divided by its respective square footage
does not show the cost of new construction for the simple fact that land is included in those
prices. See, e.g., [Doc. 32-1 at p. 2].
Further, Plaintiff contends that the “five listings for new construction,” despite
being found on the internet, are admissible because they are compilations of market
information exempted from the rule against hearsay under Federal Rule of Evidence
803(17). [Id. at p. 3]. Plaintiff provides absolutely no legal support for this contention in the
instant motion and failed to even make such an argument in her Response [Doc. 26] to LM’s
summary judgment motion. Once the movant, LM in this case, satisfied its burden on

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summary judgment, the burden shifted to the non-movant, Plaintiff, to present admissible
evidence that would create the genuine issue of material fact needed to carry the case to a
jury. [Doc. 30 at p. 9 quoting Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006)]. Plaintiff
failed to present this evidence. It was not until after the Court discussed Rule 803(17) in its
Order in light of LM’s admissibility argument against the reports from Realtor.com and
Zillow.com that Plaintiff made her argument regarding market compilations. [Doc. 32-1 at
p. 3]; see also [Doc. 27 at p. 3 citing In re Cochreham, No. 13–26465–A–13J, 2013 WL 4510694
at *3 (Bankr. E.D. Cal. Aug. 23, 2013)]. As such, the Court will not entertain such argument
at this late stage in the proceedings. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th
Cir. 2009) (internal citations and quotations omitted) (“A motion for reconsideration cannot
be used to relitigate old matters, raise argument or present evidence that could have been
raised prior to the entry of judgment. This prohibition includes new arguments that were
previously available, but not pressed.”). Even if the Court did consider her five “askingprice” estimates, they are not the correct values Plaintiff needed in order to show that the
cost of new construction (replacement costs) exceeds the cost to repair. Thus, summary
judgment in favor of LM was warranted.
CONCLUSION
In light of the foregoing, the Court DENIES Plaintiff’s Motion for Leave to File
Motion for Reconsideration or in the Alternative a Motion to Alter or Amend Judgment

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[Doc. 32]. The Court’s previous Order stands and the Clerk’s Entry of Judgment shall
remain unaltered.
SO ORDERED, this 14th day of March, 2019.

S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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