Banks v. Tanner Medical Center
Filing
117
ORDER denying Plaintiff's 99 Motion to Reconsider the Non-Article III Judge[']s Illegal Involvement That the District Judge Followed in V[io]lation to the Constitution & Procedure. Signed by Judge Richard W. Story on 3/31/2015. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SHARRON BANKS,
Plaintiff,
v.
TANNER MEDICAL CENTER,
INC.,
Defendant.
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CIVIL ACTION NO.
1:12-CV-4450-RWS
ORDER
This case comes before the Court on Plaintiff’s Motion to Reconsider the
Non-Article III Judge[’]s Illegal Involvement That the District Judge Followed
in V[io]lation to the Constitution & Procedure [99] (“Plaintiff’s Motion for
Reconsideration”). On September 10, 2014, this Court issued an Order [94]
approving and adopting the Report and Recommendation [89] of Magistrate
Judge E. Clayton Scofield, III. Specifically, the Court found that Defendant
was entitled to summary judgment as to all claims in Plaintiff's Amended
Complaint on the grounds that Plaintiff is judicially estopped from asserting any
of her claims. Further, the Court concluded that even if the claims were
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considered on their merits, Defendant would be entitled to summary judgment
for the reasons stated in the Report and Recommendation. Accordingly, the
Court denied Plaintiff's four Motions for Default Judgment (Dkt. [48], [55],
[63], [65]) and granted Defendant's Motion for Summary Judgment (Dkt. [57]).
Finally, the Court denied as moot Defendant’s Motion to Dismiss Pursuant to
Rule 37 (Dkt. [76]). In her present Motion, Plaintiff seeks reconsideration of
that Order and further asserts that this Court violated her statutory and
constitutional rights.
The Court has considered Plaintiff’s arguments but declines to reconsider
its previous Order. Under the Local Rules of this Court, “[m]otions for
reconsideration shall not be filed as a matter of routine practice[,]” but rather,
only when “absolutely necessary.” LR 7.2(E), N.D. Ga. Such absolute
necessity arises where there is “(1) newly discovered evidence; (2) an
intervening development or change in controlling law; or (3) a need to correct a
clear error of law or fact.” Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59
(N.D. Ga. 2003). A motion for reconsideration may not be used “to present the
court with arguments already heard and dismissed or to repackage familiar
arguments to test whether the court will change its mind.” Id. at 1259 (quoting
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Brogdon ex rel. Cline v. Nat'l Healthcare Corp., 103 F. Supp. 2d 1322, 1338
(N.D. Ga. 2000)). Nor may it be used “to offer new legal theories or evidence
that could have been presented in conjunction with the previously filed motion
or response, unless a reason is given for failing to raise the issue at an earlier
stage in the litigation.” Adler v. Wallace Computer Servs., Inc., 202 F.R.D.
666, 675 (N.D. Ga. 2001). Finally, “[a] motion for reconsideration is not an
opportunity for the moving party . . . to instruct the court on how the court
‘could have done it better’ the first time.” Pres. Endangered Areas of Cobb’s
History, Inc. v. U.S. Army Corps of Eng’rs, 916 F. Supp. 1557, 1560 (N.D. Ga.
1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
The Court finds that Plaintiff’s arguments directed at the Court’s prior
Order do not fall within the limited range of objections that appropriately may
be raised in a motion for reconsideration and, in any event, lack merit. First,
Bryan allows for reconsideration where there is “newly discovered evidence.”
246 F. Supp. 2d at 1258-59. This basis for reconsideration does not apply here
because Plaintiff does not allege that any new evidence has come to light. The
second avenue for reconsideration under Bryan also does not apply in this case.
Plaintiff has not shown any intervening development or change in controlling
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law. Instead, she asserts that the Court made “several grave procedural errors,”
including allowing Magistrate Judge Scofield to handle portions of the case.
(Pl.’s Mot. for Recons., Dkt. [99] at 5.)
Plaintiff thus primarily relies on the third avenue for reconsideration
under Bryan, which provides that reconsideration is necessary where there is “a
need to correct a clear error of law or fact.” 246 F. Supp. 2d at 1259. Plaintiff’s
substantive arguments are difficult to discern as they are presented over a
background of ad hominem attacks against the Court, the undersigned, and
Magistrate Judge Scofield alleging a practice of discrimination. Plaintiff claims
first that the Court did not allow Plaintiff fourteen days to file objections to the
Report and Recommendation, as required by 28 U.S.C. § 636(b) and Federal
Rule of Civil Procedure 72(b)(2). (Pl.’s Mot. for Recons., Dkt. [99] at 2.)
Plaintiff argues that a “proper Court” would “certainly know how to calculate
time to not include weekends or holidays, and to add or allow 3 days travel time
from the event action filed, and finally to not include the event date of the
filing.” (“Pl.’s Resp.”, Dkt. [116] at 4.) The Report and Recommendation [89]
and the Order for Service [90] advising Plaintiff of her right to file objections
within 14 days of service of the Report and Recommendation were mailed to
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Plaintiff on August 22, 2014. Because the time for filing objections is specified
as “after service,” Plaintiff is afforded the additional three days allowed under
Federal Rule of Civil Procedure 6(d). LR, N.D. Ga. at Appendix H, II(B)(1)(a).
Therefore, Plaintiff had seventeen days to file her objections. The objections
period excludes the day the Report and Recommendation was issued, but
includes intermediate Saturdays and Sundays. FED. R. CIV. P. (6)(a)(1)(A-B).
The last day of the objections period fell on September 9, 2014. Plaintiff filed
her objections on September 15, 2014, after this Court issued its Order
approving the Magistrate Judge’s Report and Recommendation on September
10, 2014. Accordingly, this Court was not in error issuing its Order without
considering Plaintiff’s objections, and therefore Plaintiff’s first contention
cannot serve as a basis for reconsideration.
Plaintiff next contends that
the Court considered only portions of the record favorable to Defendants. (Id.
at 10.) Plaintiff also takes issue with the Court’s citation to Defendants’
statement of material facts. (Id. at 24.) In resolving a motion for summary
judgment, the court must view all evidence and draw all reasonable inferences
in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins.
Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to
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draw those inferences which are reasonable. “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party,
there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642,
646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249-50 (internal citations omitted); see also Matsushita, 475 U.S. at 586
(once the moving party has met its burden under Rule 56(a), the nonmoving
party “must do more than simply show there is some metaphysical doubt as to
the material facts”). Magistrate Judge Scofield and this Court considered the
full record before ruling on Defendant’s motion for summary judgment and
found that the evidence presented no genuine issue of material fact. Plaintiff’s
allegations that the Magistrate Judge improperly considered only the parts of
the record that benefitted Defendants cannot serve as a basis for
reconsideration. Further, the moving party bears the initial burden of showing
the court “the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence of
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a genuine issue of material fact” and “an absence of evidence to support the
non-moving party’s case.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 2553-54 (1986); U.S. v.
Four Parcels of Real Prop., 941 F.2d 1428, 1437-38 (11th Cir. 1991).
Magistrate Judge Scofield cited to Defendants’ Statement of Material Facts
because Plaintiff did not submit a separate, concise, numbered statement of
additional material facts as required by Local Rule 56.1 B(2)(b) (see Report &
Recommendation, Dkt. [89] at 16 n.4), and this Court finds that it was not clear
error for Magistrate Judge Scofield to do so.
Plaintiff further argues she cannot be judicially estopped by her
representations in the matter before the bankruptcy court because an EEOC
investigation is not a “proceeding,” and because the doctrine of judicial
estoppel is equitable rather than legal in nature. (See Pl.’s Mot. for Recons.,
Dkt. [99] at 13, 21.) This Court and Magistrate Judge Scofield concluded that
Plaintiff is estopped from asserting any of her claims because she failed to
disclose them to the Bankruptcy Court when she filed her voluntary petition for
bankruptcy. The test for judicial estoppel in the Eleventh Circuit does not
require this Court to determine whether the EEOC investigation is a
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“proceeding.” Rather, courts in the Eleventh Circuit must consider two factors:
“First, it must be shown that the allegedly inconsistent positions were made
under oath in a prior proceeding. Second, such inconsistencies must be shown
to have been calculated to make a mockery of the judicial system.” Burnes v.
Pemco Aeroplex. Inc., 291 F.3d 1282, 1285 (11th Cir. 2002) (quoting Salomon
Smith Barney, Inc., v. Harvey, M.D., 260 F.3d 1302, 1308 (11th Cir. 2001)).
The “prior proceeding” relevant to the judicial estoppel inquiry is the
bankruptcy proceeding itself. And it was in that proceeding that Plaintiff
represented that she was not party to any administrative actions and that she had
a “potential claim with [the] EEOC” worth “$0.00.” (Def.’s SOMF, Dkt. [57-1]
¶¶ 91-92.) The Magistrate Judge then inferred from the record a deliberate or
intentional manipulation by Plaintiff, which satisfied the second prong of the
judicial estoppel inquiry. Accordingly, the Court cannot conclude that finding
Plaintiff’s claims barred by judicial estoppel was a clear error of law or fact
such that it must reconsider its earlier Order. Nor does Plaintiff’s contention
that the equitable doctrine of judicial estoppel cannot apply in a legal
proceeding warrant reconsideration. The purpose of the judicial estoppel
doctrine is to “prevent a party from asserting a claim in a legal proceeding that
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is inconsistent with a claim taken by the party in a previous preceding.”
Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (quoting
18 James Wm. Moore, Moore’s Federal Practice § 134.30 (3d ed. 2008))
(emphasis added). Plaintiff’s contentions regarding estoppel are therefore
without merit and cannot serve as a basis for reconsideration.
Addressing the substance of her Title VII claims, Plaintiff claims that
“Tanner has not produce[d] one single thread of evidence to show that they did
not discriminate against her.” (Id. at 25.) Plaintiff asks, “[W]hy didn’t Tanner
write-up Plaintiff and follow their policy for none performances? Could it be
because Plaintiff did complete her orientation and worked the assigned nursing
station?” (Id. at 25.) But Plaintiff provides no evidence that she completed the
orientation or worked as assigned. The Magistrate Judge did not consider any
"facts" raised only in Plaintiff's response brief. Local Rule 56.1 B(2)(b)
requires a separate, concise, numbered statement of additional material facts,
which Plaintiff failed to provide. Plaintiff argues throughout her submissions to
this Court that this Court must consider her arguments in light of her pro se
status. “While courts show leniency to pro se litigants not enjoyed by
counseled litigants, this leniency does not permit a court to serve as de facto
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counsel for a party or to overlook deficiencies in their filings.” Brandon v.
Lockheed Martin Aeronautical Sys., 393 F. Supp. 2d 1341, 1348 (N.D. Ga.
2005) (citing GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th
Cir.1998)). “[O]nce a pro se . . . litigant is in court, [s]he is subject to the
relevant law and rules of court,” including the Local Rules of this district.
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Accordingly, this
Court cannot conclude that not considering the “facts” raised in Plaintiff’s reply
was clear error.
Further, when a plaintiff relies on circumstantial evidence to establish
discriminatory intent, as Plaintiff does in this case, courts apply a burdenshifting framework to test the sufficiency of the claim. Brooks v. Cnty.
Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under the
McDonnell Douglas framework, if a plaintiff establishes a prima facie case of
discrimination, the defendant has the burden of producing a legitimate, nondiscriminatory reason for its employment action. Id. Once the defendant has
met its burden, “the plaintiff much show that the proffered reason really is
pretext for unlawful discrimination.” Id. (quotations and citation omitted).
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“Although the intermediate burdens of production shift back and forth, the
ultimate burden of persuading the trier of fact that the employer intentionally
discriminated against the employee remains at all times with the plaintiff.” Id.
(quotations and citation omitted). To demonstrate pretext, Plaintiff must
provide evidence that reveals “such weaknesses, implausibilities, incoherencies
or contradictions in the employer’s proffered legitimate reasons for its actions
that a reasonable fact finder could find them unworthy of credence.” Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005). Here, Plaintiff
raises rhetorical questions to suggest that Defendant has not carried its burden.
On this basis, the Court cannot conclude that it committed clear error in
granting summary judgment to Defendant. Plaintiff simply disagrees with the
Court’s ultimate conclusion, and mere disagreement with the result cannot
provide a basis for reconsideration.
Because Plaintiff has not shown that one of Bryan’s three bases for
reconsideration apply in this case, her motion for reconsideration must be
DENIED.
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Conclusion
For the foregoing reasons, Plaintiff’s Motion to Reconsider the NonArticle III Judge[’]s Illegal Involvement That the District Judge Followed in
V[io]lation to the Constitution & Procedure [99] is DENIED.
SO ORDERED, this 31st day of March, 2015.
________________________________
RICHARD W. STORY
United States District Judge
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