Durden et al v. State Farm Fire and Casualty Company

Filing 46

OPINION AND ORDER denying Plaintiffs' Motion for Reconsideration of this Honorable Courts Granting of Defendants Motion for Summary Judgment 37 , denying Plaintiffs' Motion to Extend Time for Plaintiffs to Amend Motion for Reconsideration of this Honorable Courts' Granting of Defendants Motion for Summary Judgment 39 , denying Plaintiffs' Amended Motion for Reconsideration of this Honorable Court's Granting of Defendant's Motion for Summary Judgment 42 and denying Michael B. Weinsteins' Motion to Withdraw as Counsel for Tresa Durden f/k/a Tresa McCowell and Michael Lane Durden 40 . Signed by Judge William S. Duffey, Jr on 8/29/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TRESA DURDEN, f/k/a Tresa
McCowell, and MICHAEL LANE
DURDEN,
Plaintiffs,
v.

1:15-cv-3971-WSD

STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant.

OPINION AND ORDER
This matter is before the Court on Plaintiffs Tresa Durden (“Mrs. Durden”)
and Michael Lane Durden’s (“Mr. Durden”) (together, “Plaintiffs”) Motion for
Reconsideration of this Honorable Court’s Granting of Defendant’s Motion for
Summary Judgment [37] (“Motion for Reconsideration”), Motion to Extend Time
for Plaintiffs to Amend Motion for Reconsideration of this Honorable Court’s
Granting of Defendant’s Motion for Summary Judgment [39] (“Motion for
Extension”), and Amended Motion for Reconsideration of this Honorable Court’s
Granting of Defendant’s Motion for Summary Judgment [42] (“Amended Motion
for Reconsideration”). Also before the Court is Michael B. Weinstein’s

(“Weinstein”) Motion to Withdraw as Counsel for Tresa Durden f/k/a Tresa
McCowell and Michael Lane Durden [40] (“Motion to Withdraw”).
I.

BACKGROUND1
A.

Insurance Policy

In July 2014, Defendant State Farm Fire and Casualty Company
(“Defendant”) issued a renters insurance policy (“Policy”) to Plaintiffs. ([24.4]
at 2). The Policy provides coverage, from July 15, 2014, to July 15, 2015, for
“accidental direct physical loss” to Plaintiffs’ personal property. ([24.4] at 2, 22).
Plaintiffs are not entitled to payment under the Policy if they “cause[] or procure[]
a loss to property . . . for the purpose of obtaining insurance benefits” or if they
“intentionally conceal[] or misrepresent[] any material fact or circumstance
relating to th[e] insurance, whether before or after a loss.” (Plaintiffs’ Response to
Defendant State Farm Fire and Casualty Company’s Statement of Undisputed
Material Facts [31.2] (“Pl. Resp. DSMF”) ¶¶ 57-58). The Policy requires Plaintiffs
to take certain steps after suffering a covered loss:

1

The facts, stated in this Order, are taken from the Court’s February 27, 2017,
Order [35] granting Defendant’s Motion for Summary Judgment.
2

After a loss to which this insurance may apply, you shall see that the
following duties are performed:
a. give immediate notice to us or our agent. Also notify the police if
the loss is caused by theft. Also notify the credit card company or
bank if the loss involves a credit card or bank fund transfer card;
b. protect the property from further damage or loss, make reasonable
and necessary temporary repairs required to protect the property,
keep an accurate record of repair expenditures;
c. prepare an inventory of damaged or stolen personal property.
Show in detail the quantity description, age, replacement cost and
amount of loss. Attach to the inventory all bills, receipts and
related documents that substantiate the figures in the inventory;
d. as often as we reasonably require:
(1) exhibit the damaged property;
(2) provide us with records and documents we request and permit
us to make copies;
(3) submit to and subscribe, while not in the presence of any other
insured:
(a) statements; and
(b) examinations under oath;
....
(Pl. Resp. DSMF ¶ 28).
The Policy limits the circumstances in which Plaintiffs may file suit
against Defendant: “No action shall be brought unless there has been
3

compliance with the policy provisions. The action must be started within
one year after the date of loss or damage.” (Pl. Resp. DSMF ¶ 55).
B.

Plaintiffs’ Claims under the Policy

On September 10, 2014, Plaintiffs were evicted from their home for
withholding lease payments from their landlord. (Pl. Resp. DSMF ¶¶ 1-3, 8).2
Deputies from the Sheriff’s Office of Butts County were present when the eviction
occurred. (Pl. Resp. DSMF ¶ 3). The eviction was conducted pursuant to a writ of
possession issued by the Magistrate Court of Butts County. (Pl. Resp. DSMF ¶ 3).
On September 19, 2014, Mrs. Durden told the Sheriff’s Office that
approximately $10,109 of Plaintiffs’ personal property was stolen during the
eviction. ([24.7] at 6; Pl. Resp. DSMF ¶ 17). She said that she hired two strangers
to help move her belongings from her home, that they took two loads of Plaintiffs’
property in a truck and trailer, and that they “took the property some where [sic]
other than the storage location” to which they were instructed to deliver the
property. ([24.7] at 6; Pl. Resp. DSMF ¶ 16). On September 26, 2014, Plaintiffs
filed a claim under the Policy. (Pl. Resp. DSMF ¶ 6). On October 16, 2014,

2

Plaintiffs claim they withheld the payments because the landlord refused to
make certain repairs to their home. (Pl. Resp. DSMF ¶ 8).
4

Mrs. Durden supplemented her police report, stating that $19,311 of Plaintiffs’
personal property was stolen. (Pl. Resp. DSMF ¶ 18).
On December 5, 2014, Mrs. Durden provided Defendant with her recorded
statement. (Pl. Resp. DSMF ¶ 7). She said that Plaintiffs’ personal property was
stolen or damaged during the eviction. (Pl. Resp. DSMF ¶ 8). She claimed
$30,000 in missing property. (Pl. Resp. DSMF ¶ 8). She said the Sheriff’s Office
did not believe she lost as much property as she claimed. (Pl. Resp. DSMF ¶ 8).
She said the Sheriff’s Office interviewed the individuals involved in the eviction,
and could not corroborate Plaintiffs’ story. (Pl. Resp. DSMF ¶ 8).
In December 2014, Defendant asked Plaintiffs to provide the following
documents in support of their claim: the police report, eviction documents, an
inventory of the stolen or damaged property, and proof of Plaintiffs’ ownership of
the property. (Pl. Resp. DSMF ¶ 9). On January 12, 2015, Plaintiffs provided
Defendant with an inventory of hundreds of items, totaling $41,223 in stolen
property and $32,312.99 in damaged property. (Pl. Resp. DSMF ¶¶ 11-12).
The list of stolen items included thousands of dollars of jewelry, twenty lighters
valued at $30 each, and several holiday decorations. (Pl. Resp. DSMF ¶ 12).
The list of damaged items included frozen food and food from Plaintiffs’ pantry.
(Pl. Resp. DSMF ¶ 12). The inventory also included baby items such as a
5

Fisher Price electric swing, a Graco travel system car seat and stroller, and a
Graco bouncy seat. (Pl. Resp. DSMF ¶ 13). Plaintiffs’ youngest child was
seventeen years old at the time of the eviction. (Pl. Resp. DSMF ¶ 13).
On January 26, 2015, Plaintiffs provided Defendant with a copy of the
Sheriff’s Office Incident Report. (Pl. Resp. DSMF ¶¶ 15-18). Plaintiffs also
provided Defendant with other documents, including photographs, receipts, and
product manuals. (Pl. Resp. DSMF ¶ 10). In light of the information submitted by
Plaintiffs, Defendant determined that Plaintiffs’ reported losses were
“questionable,” that they included “numerous family heirlooms,” that they
included the “total contents of business/home including items of little or no value,”
and that Plaintiffs’ inventory of items “differ[ed] significantly from the police
department’s crime report.” (Pl. Resp. DSMF ¶ 19).
On January 30, 2015, Defendant received a telephone call from Lt. Darrel
Powers of the Butty County Sheriff’s Office. (Pl. Resp. DSMF ¶ 20). Lt. Powers
told Defendant (1) that Mrs. Durden “goes by several different names,” (2) that he
has a video showing that Plaintiffs’ property was appropriately removed from their
home, (3) that Mrs. Durden has “a history of being evicted and making claims of
theft,” (4) that Mrs. Durden repeatedly returned to the Sheriff’s Office to add items
to the list of allegedly stolen property, (5) that he told Mrs. Durden she was no
6

longer permitted to add items to the list, and (6) that the Sheriff’s Office “don’t
believe her and they are closing the case and are not going to deal with her any
longer.” (Pl. Resp. DSMF ¶ 20).
On February 2, 2015, Plaintiffs provided Defendant with an amended
inventory, listing $34,553.86 in stolen property, with a replacement cost of
$59,608.23. (Pl. Resp. DSMF ¶ 21). On February 17, 2015, Plaintiffs’ landlord
told Defendant that he had a judgment against Plaintiffs for thousands of dollars,
that Mrs. Durden previously was evicted from a house in Jasper County, and that
Mrs. Durden claimed, on four prior occasions, in different counties, that items
were stolen from her during evictions. (Pl. Resp. DSMF ¶ 22).3 On
February 24, 2015, Lt. Darrel Powers told Defendant that “the theft was
completely fabricated,” that “the eviction was videotaped and done legally,” that
Mrs. Durden was a “liar,” that she previously was evicted from Jasper County, and
that she had used a variety of aliases to commit the same “scam” in other counties.
(Pl. Resp. DSMF ¶ 24).
On March 2, 2015, Defendant sent Mrs. Durden a copy of the Policy
provision that lists her “duties after loss,” including her duty to “provide
[Defendant] with records and documents [that Defendant] request,” and her duty to
3

Plaintiffs state they have never been evicted. (Pl. Resp. DSMF ¶ 22).
7

provide any requested statements and to submit to examinations under oath.
([24.9]; (Pl. Resp. DSMF ¶ 26). Defendant asked Mrs. Durden to comply with this
provision and to complete, by May 2, 2015, a Sworn Statement in Proof of Loss.
(Pl. Resp. DSMF ¶ 26).
On March 27, 2015, Defendant asked Mrs. Durden to submit, on
April 3, 2015, in Atlanta, to an examination under oath (“EUO”). (Pl. Resp.
DSMF ¶ 27). Defendant sought to resolve several coverage issues, including
whether Plaintiffs intentionally caused their losses or misrepresented any material
facts regarding their claim. (Pl. Resp. DSMF ¶ 25).4 Defendant asked
Mrs. Durden to provide several documents in advance of the EUO, including the
following:
 A completed Sworn Proof of Loss;
 Copies of all Leases where she had resided (2010 to present);
 Receipts, invoices, credit card records, owner’s manuals,
photographs, and other items substantiating the claimed amounts;

4

Defendant also sought to determine whether Plaintiffs’ losses constituted
“accidental direct physical loss,” whether Plaintiffs took all required steps after
suffering their loss, whether Plaintiffs abandoned their property, and whether
Plaintiffs “use[d] all reasonable means to save and preserve the property at and
after the time of [their] loss.” ([24.4] at 22; Pl. Resp. DSMF ¶¶ 25, 59-60). These
questions were relevant to Plaintiffs’ entitlement to payment under the Policy.
8

 Income Records – tax returns, records reflecting household income
(2013 and 2014), all working financial records (2013 and 2014),
and monthly bank statements (2013 and 2014);
 Debt/Expense Records – records reflecting household expenses
(2013 and 2014), copies of leases, copies of any bankruptcy
petitions, copies of any credit and debit card statements for all
cards (2013 and 2014);
 Documents reflecting items pawned by Plaintiff Tresa Durden, her
children, or spouse (2012, 2013, 2014);
 The name and address of any moving van or truck, moving service,
storage facility, the name of the renter, and a copy of the contract
(2012, 2013, 2014);
 A printout of social media accounts for all social media accounts
(for the time period of January 1, 2014 through October 31, 2014).
(Pl. Resp. DSMF ¶ 29; [24.10] at 3-4). Defendant advised Mrs. Durden that it
“insists upon strict compliance with the policy conditions” and that “[n]o further
action will be taken on [her] claim until the examination has been completed and
signed and until all documents requested have been produced.” ([24.10] at 5).
Defendant told Mrs. Durden she was not required to produce any documents that
she did not have or could not obtain. ([24.10] at 4).
On March 31, 2015, Mrs. Durden asked Defendant to move her EUO to
Stockbridge, Georgia. (Pl. Resp. DSMF ¶ 30; [24.11]; [24.13]). Defendant agreed
to do so. (Pl. Resp. DSMF ¶ 30; [24.11]). On April 2, 2015, Mrs. Durden

9

cancelled the EUO and informed Defendant that she had retained counsel.
([24.12]; Pl. Resp. DSMF ¶ 31). On April 21, 2015, Defendant rescheduled the
EUO for May 1, 2015. ([24.13] at 1; Pl. Resp. DSMF ¶ 32). Defendant also
reiterated its earlier request that Mrs. Durden submit certain documents to
Defendant in advance of the EUO. (Pl. Resp. DSMF ¶ 32).
On April 29, 2015, Mrs. Durden cancelled the EUO for a second time.
(Pl. Resp. DSMF ¶ 33). On May 1, 2015, Defendant warned Mrs. Durden that
further delay could jeopardize her coverage under the Policy. (Pl. Resp. DSMF
¶ 33). Defendant also reiterated that it requires “strict compliance with all policy
conditions.” ([24.14]). On May 7, 2015, Mrs. Durden called Defendant and
complained about its requests for documentation and an EUO. (Pl. Resp. DSMF
¶ 34). Mrs. Durden said she thought Defendant’s requests were too personal and
that Defendant did not have a right to conduct an EUO. (Pl. Resp. DSMF ¶ 34).
On May 12, 2015, Mrs. Durden informed Defendant that she or her attorney would
contact Defendant to reschedule the EUO. (Pl. Resp. DSMF ¶ 35). Two days
later, Defendant again advised Mrs. Durden that her claim could not be processed
until she provided the requested documents and underwent an EUO. ([24.15]).
Defendant stated that further delay could jeopardize her coverage under the Policy
and that Defendant “insists upon strict compliance with all policy conditions.”
10

([24.15]). Defendant also warned Mrs. Durden that, under the Policy, she could
not bring an action against Defendant unless she complied with all Policy
provisions within one year of the date of her loss. ([24.15]).
Almost three months later, on August 3, 2015, Mrs. Durden contacted
Defendant and rescheduled her EUO for August 14, 2015. (Pl. Resp. DSMF ¶ 36).
On August 4, 2015, Defendant sent Mrs. Durden a letter, reiterating Defendant’s
earlier request for documents in advance of the EUO, stating that “strict
compliance with the policy conditions” was required, and warning that “[n]o
further action will be taken on [Plaintiffs’] claim until the examination has been
completed and signed and until all documents requested have been produced.”
([24.16]). Defendant’s letter also included a copy of the Policy provision that lists
Plaintiffs’ duties after suffering a loss, including Plaintiffs’ duty to provide
Defendant with requested documents and to submit to an EUO. ([24.16]).
On August 14, 2015, Defendant took Mrs. Durden’s EUO. (Pl. Resp. DSMF
¶ 37). Mrs. Durden brought an amended inventory to the EUO, claiming
$35,325.44 in stolen property, with a replacement cost of $60,119.81. (Pl. Resp.
DSMF ¶ 43). She also brought a copy of her Sworn Statement in Proof of Loss,
claiming $59,608.23 in stolen property and $32,312.99 in damaged property.
(Pl. Resp. DSMF ¶ 42). She did not bring, or otherwise submit, other documents
11

requested by Defendant. ([24.19] at 1). She told Defendant it was “not legally
entitled to the following documents and records nor are these records relevant to
[Plaintiffs’] claim: Bank statements and records, tax returns, credit card
statements, leases, Facebook, Twitter, Instagram, or LinkedIn, bankruptcy records,
phone records, moving truck, moving van, moving service, and storage facility.”
(Pl. Resp. DSMF ¶ 39).
Mrs. Durden also refused, at her EUO, to answer questions concerning
(1) her household income and finances,5 (2) her cell phone,6 (3) her prior leases,
(4) her current landlord, (5) where she lived previously, (6) prior lawsuits in which
she was involved, (7) whether she previously filed for bankruptcy, (8) whether she
pawned any items in the last three years, (9) whether she was evicted previously,
and (10) the U-haul she rented on the date of her loss. (Pl. Resp. DSMF ¶ 38). In
view of Mrs. Durden’s failure to answer these questions, and her failure provide
the required documentation, Defendant could not complete the EUO. (Pl. Resp.
DSMF ¶ 44).
5

Mrs. Durden refused to answer whether she received monthly income from
other than her husband’s job. (Pl. Resp. DSMF ¶ 40; [24.13] at 13). She stated
that she had a retirement account, “some savings,” and that “her children received
[almost $100,000] as a result of their father being a disabled Veteran who is
deceased.” (Pl. Resp. DSMF ¶ 40; [31.8] at 1; [24.23] at 13).
6
Mrs. Durden used her cell phone during the eviction, but refused to provide
the name of the carrier. (Pl. Resp. DSMF ¶ 41).
12

On August 24, 2015, Defendant told Mrs. Durden it could not “render a
decision on [her] claim until all of the records and documents requested have been
produced.” ([24.19] at 4). Defendant provided Mrs. Durden with a copy of the
Policy provision listing Plaintiffs’ duties after suffering a loss, and reiterated that
Defendant “demand[s] strict compliance with all provisions in the insurance
contract.” ([24.19] at 4).
Plaintiffs did not, before filing this action, produce the “requested credit or
debit card records, bank records, tax returns, household income or expense records,
debt/expense records, moving or storage records, or social media records.”
(Pl. Resp. DSMF ¶ 50). Mrs. Durden had access to these documents but declined
to produce them because she believed they were irrelevant. (Pl. Resp. DSMF
¶ 50).
C.

Procedural History

On September 9, 2015, Plaintiffs filed their Complaint [1.1] in the Superior
Court of Henry County, asserting a claim for breach of contract. Plaintiffs alleged
that, in violation of the Policy, Defendant failed to “fully indemnify the Durdens
for the value of their loss to their personal property due to the September 10, 2014
theft and vandalism occurrence.” (Compl. ¶ 9). Plaintiffs sought damages of
$65,000 or $90,000. (Compl. at 8).
13

On November 13, 2015, Defendant removed this action from state court.
([1]). On June 30, 2016, Defendant filed its Motion for Summary Judgment [24].
Defendant argued that Plaintiffs’ claims are barred because Plaintiffs were
required, but failed, to comply with the Policy’s provisions before filing their
Complaint. ([24.1] at 24). Specifically, Defendant claimed that Plaintiffs failed to
produce documents or adequately submit to an examination under oath, in
violation of the Policy. ([24.1] at 24-25). On February 27, 2017, the Court granted
Defendant’s Motion for Summary Judgment. (See [35] (“February 2017 Order”)).
The Court found that Plaintiffs failed to comply with a condition precedent to
bringing this action because, in violation of the Policy, they did not provide
material information requested by Defendant.
On March 27, 2017, Plaintiffs, through their attorney, filed their Motion for
Reconsideration, challenging the Court’s February 2017 Order. On April 10, 2017,
Plaintiffs filed, pro se, their Motion for Extension, seeking additional time in
which to amend their Motion for Reconsideration. The next day, Weinstein moved
to withdraw as Plaintiffs’ counsel of record. On April 14, 2017, Plaintiffs filed,
pro se, their Amended Motion for Reconsideration. On April 21, 2017, Plaintiffs
filed their objections to Weinstein’s Motion to Withdraw, arguing that Weinstein

14

should “continue as counsel for Plaintiffs for the duration of this case.” ([43] at
10).
II.

WEINSTEIN’S MOTION TO WITHDRAW
Weinstein seeks leave to withdraw as Plaintiffs’ counsel of record. Under

Local Rule 83.1(E)(2)(b), a motion to withdraw “shall state that the attorney has
given the client fourteen (14) days prior notice of the attorney’s intention to request
permission to withdraw and shall specify the manner of such notice. The notice
shall be served upon the client, personally or at that client’s last known address.”
LR 83.1(E)(2)(b), NDGa. “A copy of the notice shall be affixed to the motion.”
LR 83.1(E)(2)(b)(J), NDGa.
Weinstein’s Motion to Withdraw fails to comply with these requirements.
Weinstein does not state that he gave Plaintiffs fourteen days notice of his intention
to seek permission to withdraw. Weinstein does not state that he provided this
notice personally or at Plaintiffs’ last known address. Weinstein also failed to
submit with his motion a copy of the required notice. Weinstein’s Motion to
Withdraw is denied for failure to comply with Local Rule 83.1(E)(2)(b).
III.

PLAINTIFFS’ PRO SE MOTIONS
Plaintiffs’ Motion for Extension and Amended Motion for Reconsideration

(together, “Pro se Motions”) were filed pro se. Local Rule 83.1(D)(2) provides
15

limited circumstances in which a represented party may file pro se motions in a
civil case:
Pro se Appearance Limitations. Whenever a party has appeared by
attorney, the party may not thereafter appear or act in the party’s own
behalf in the action or proceeding or take any step therein unless the
party has first given notice of the party’s intention to the attorney of
record and to the opposing party and has obtained an order of
substitution from the court. Notwithstanding this rule, the court may
in its discretion hear a party in open court even though the party has
previously appeared or is represented by attorney.
LR 83.1(D)(2), NDGa.
Plaintiffs’ Pro Se Motions were filed in violation of this rule because, when
the motions were filed, Plaintiffs were represented by Weinstein. Plaintiffs have
not shown that they notified Weinstein and Defendant of their intention to proceed
pro se. Plaintiffs also did not obtain an “order of substitution from the court,” and
in fact opposed Weinstein’s Motion to Withdraw. LR 83.1(D)(2), NDGa.
Plaintiffs’ Pro Se Motions are denied for failure to comply with Local Rule
83.1(D)(2). See Way v. Sims, No. 1:08-cv-3849, 2009 WL 10670654, at *5 (N.D.
Ga. Dec. 14, 2009) (denying a pro se motion for reconsideration for failure to
comply with Local Rule 83.1(D)(2)).7

7

Plaintiffs’ Amended Motion for Reconsideration also exceeds the page limit
prescribed by Local Rule 7.1(D).
16

Weinstein filed Plaintiffs’ Motion for Reconsideration on March 27, 2017.
Because Plaintiffs’ pro se motion is not properly before the Court, the operative
motion for reconsideration is that filed by Weinstein on March 27, 2017, and it is
the March 27, 2017, motion that the Court considers in this Order.
IV.

PLAINTIFFS’ MOTION FOR RECONSIDERATION
A.

Legal Standard

Motions for reconsideration “should be reserved for extraordinary
circumstances” and are not to “be filed as a matter of routine practice.” LR 7.2(E),
NDGa; Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga.
2001). If a motion for reconsideration is “absolutely necessary,” it must be “filed
with the clerk of court within twenty-eight (28) days after entry of the order or
judgment.” LR 7.2(E), NDGa.
Plaintiff here seeks reconsideration under Rule 59(e) of the Federal Rules of
Civil Procedure. See Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997)
(finding that a motion for reconsideration was properly characterized as falling
under Rule 59(e), rather than Rule 60, because “the relief sought was the setting
aside of the grant of summary judgment, denial of the defendant’s motion for

17

summary judgment, and trial on the merits of the case”).8 “The only grounds for
granting a Rule 59 motion are newly-discovered evidence or manifest errors of law
or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007); see
Hood v. Perdue, 300 F. App’x 699, 700 (11th Cir. 2008); Jersawitz v. People,
71 F. Supp. 2d 1330, 1344 (N.D. Ga. 1999). “Evidence that could have been
discovered and presented on the previously-filed motion is not newly discovered.”
Cox v. Rubin Lublin, LLC, No. 1:16-cv-448, 2017 WL 117142, at *2 n.2 (N.D.
Ga. Jan. 11, 2017); see Arthur, 500 F.3d at 1343-44; Mays v. U.S. Postal Serv.,
122 F.3d 43, 46 (11th Cir. 1997) (“[P]arties cannot introduce new evidence
post-judgment unless they show that the evidence was previously unavailable.”).
An error is “manifest” if it is “clear and obvious.” United States v. Battle,
272 F. Supp. 2d 1354, 1358 (N.D. Ga. 2003); see Benton v. Burke, No. 11-cv-493,
2012 WL 1746122, at *1 (N.D. Ala. May 16, 2012) (“A manifest error of law is
the wholesale disregard, misapplication, or failure to recognize controlling
precedent.”). A court’s conclusions are not manifestly erroneous if they are “at
least arguabl[y]” correct. Battle, 272 F. Supp. 2d at 1358.

8

The Court would reach the same conclusions expressed in this Order even if
Plaintiffs’ Motion for Reconsideration was filed pursuant to Rule 60 of the Federal
Rules of Civil Procedure.
18

“[T]he moving party must set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision.” Burger King
Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002).
“When evaluating a motion to reconsider, a court should proceed cautiously,
realizing that in the interests of finality and conservation of scarce judicial
resources, reconsideration of a previous order is an extraordinary remedy to be
employed sparingly.” United States v. Bailey, 288 F. Supp. 2d 1261, 1267 (M.D.
Fla. 2003), aff’d, 419 F.3d 1208 (11th Cir. 2005); cf. Griffin v. Swim-Tech Corp.,
722 F.2d 677, 680 (11th Cir. 1984) (“The desirability for order and predictability
in the judicial process speaks for caution in the reopening of judgments.”).
“[T]he decision to grant a motion for reconsideration is committed to the sound
discretion of the district judge.” Townsend v. Gray, 505 F. App’x 916, 917 (11th
Cir. 2013).
B.

Analysis

Plaintiffs move for reconsideration on the following grounds:
(1) “Defendant had no credible reason to believe Plaintiffs were in any way
fraudulent in the submission of their claim,” (2) Plaintiffs “substantially compl[ied]
with Defendant’s requests,” and (3) Mrs. Durden, on October 4, 2016, was
diagnosed with medical conditions that rendered her “unable to fully understand
19

the requirement that she needed to produce all documents requested by
Defendant.” ([37] at 12-14). The grounds for reconsideration, while facially
inconsistent, are addressed separately by the Court.
1.

Reasons to Suspect Fraud

Plaintiffs seek reconsideration on the grounds that “Defendant had no
credible reason to believe Plaintiffs were in any way fraudulent in the submission
of their claim.” ([37] at 13-14). As the Court found in its February 2017 Order,
however, the record is replete with indications of fraudulent conduct. Between
Mrs. Durden’s eviction and her examination under oath, Plaintiffs’ alleged losses
increased from approximately $10,000 to $60,000 in stolen property.9
Plaintiffs’ initial claim of $10,000 doubled within a month of her first police
report. (See Pl. Resp. DSMF ¶¶ 17-18). The Sheriff’s Office repeatedly informed
Defendant that they did not believe Mrs. Durden’s story, that she repeatedly added
items to her list of allegedly stolen property, that she was a “liar,” that they closed
her case after failing to corroborate her version of events, that she had “a history of
being evicted and making claims of theft,” that she used a variety of aliases to
commit the same “scam” in other counties, and that they had a video showing
9

Plaintiffs’ final inventory claimed approximately $35,000 in stolen property,
with a replacement cost of approximately $60,000. Plaintiffs’ Sworn Statement in
Proof of Loss claims $59,608.23 in stolen property.
20

Plaintiffs’ property was appropriately moved during the eviction. (Pl. Resp.
DSMF ¶¶ 8, 20, 24). Plaintiffs’ landlord also told Defendant he had a judgment
against Plaintiffs for thousands of dollars, and that Mrs. Durden claimed, on four
prior occasions, in different counties, that items were stolen from her home during
evictions. (Pl. Resp. DSMF ¶ 22). This information, regardless of its ultimate
truthfulness, “authorized [Defendant] to suspect fraudulent behavior” from
Plaintiffs. Allstate Ins. Co. v. Hamler, 545 S.E.2d 12, 14 (Ga. Ct. App. 2001). The
Court, in its February 2017 Order, correctly found that “there is evidence of
possible fraud in this case.” (February 2017 Order at 23). Plaintiffs have not
shown this conclusion constitutes “manifest error” or warrants relief under
Rule 59(e). Arthur, 500 F.3d at 1343.
2.

Plaintiffs’ Substantial Compliance with Defendant’s Requests

Plaintiffs claim that summary judgment should not have been granted
because they “substantially compl[ied] with Defendant’s requests.” ([37] at 12).
As the Court found in its February 2017 Order, however, Plaintiffs failed to
provide Defendant with documents required to be produced under Georgia law.
The insurance policy in Halcome, like the Policy here, required
plaintiffs to submit to examinations under oath and to produce documents
requested by the insurance company. Halcome v. Cincinnati Ins. Co., 334
21

S.E.2d 155 (Ga. 1985). The Halcome plaintiffs filed claims under the policy
after their car allegedly was stolen from a motel parking lot. They claimed a
property loss of approximately $130,000, the bulk of which was for jewelry
contained in the stolen car. The insurance company became suspicious of
the claim after discovering that (1) plaintiffs previously filed an insurance
claim for a burglary loss of about $136,000, the majority of which was for
jewelry, (2) plaintiffs recently increased the coverage on their jewelry,
(3) plaintiffs recently filed, but did not prevail in, a lawsuit against other
companies, (4) plaintiffs were sued, three years earlier, for delinquent rental
payments, and (5) plaintiffs were unemployed at the time of the alleged
theft.
The plaintiffs submitted to an examination under oath, where they
answered several questions and produced several documents. Plaintiffs
refused, however, to provide certain financial records requested by the
insurance company, including documents showing plaintiffs’ income and
sources of income for several years preceding their claim. Plaintiffs argued
“the information sought [was] not relevant to the claim under investigation,
and [was] of a private nature so that its disclosure should not be required.”
334 S.E.2d at 157. The Georgia Supreme Court found that plaintiffs’
22

“recent income and sources of income” were material—that is, “relevant”—
because “there [was] evidence of possible fraud.” Id. The court held that
plaintiffs were barred from recovery because they breached their insurance
contract by failing to produce the required information. Id.
The insurance policy in Hamler also required plaintiff to produce
documents requested by the insurance company. The policy precluded
plaintiff from bringing suit unless she complied with “all policy terms.”
545 S.E.2d at 13. Plaintiff filed a claim under the policy after several items
allegedly were stolen from her home. Plaintiff submitted to an examination
under oath and produced several documents requested by the insurance
company, including bank statements, receipts, her driver’s license,
photographs of the stolen items, and copies of the police reports. Plaintiff
refused, however, to produce her tax returns, documents reflecting her
income, telephone or other utility bills, credit card or other loan statements,
and records showing her hospital admissions and discharges.
The Georgia Court of Appeals held that plaintiff “breached the
contract of insurance by failing to provide these documents, even though
[plaintiff] did provide certain other information.” Id. at 14. The court found
that the insurance company “was authorized to suspect fraudulent behavior”
23

because plaintiff’s statements during her examination under oath “differed in
certain respects from her earlier statements.” Id. The court concluded that
“the information sought by [the insurance company] was relevant to its
suspicion of fraud and to a possible financial motive.” Id. Plaintiff was
barred from bringing an action against the insurance company because she
failed to produce the requested documents.
It is undisputed that Plaintiffs here did not, before filing this action, produce
several documents requested by Defendant, including “credit or debit card records,
bank records, tax returns, household income or expense records, debt/expense
records, moving or storage records, or social media records.” (Pl. Resp. DSMF
¶ 50). These documents are similar—and, in some instances, identical—to those in
Hamler and, as in that case, they are relevant to Defendant’s “suspicion of fraud
and to a possible financial motive.” Hamler, 545 S.E.2d at 14; see JC & C
Inc. v. Peerless Indem. Ins. Co., No. 1:11-cv-3591, 2013 WL 1346021, at *3 (N.D.
Ga. Apr. 3, 2013), aff’d, 548 F. App’x 604 (11th Cir. 2013) (“In a case where there
is possible fraud, such as this one, information about the insured’s income and
financial situation is material and relevant to possible fraud and to the insured’s
possible financial motive.”); Roberts v. State Farm Fire & Cas. Co., No. 7:11-cv86, 2011 WL 6215700, at *6 (M.D. Ga. Dec. 14, 2011), aff’d, 479 F. App’x 223
24

(11th Cir. 2012) (“In a case like this where there is possible fraud, information
about the insured’s income and sources of income is material and relevant to
possible fraud and to the insured’s possible financial motive.”). The Court found,
in its February 2017 Order, that the documents were required to be produced, and
that Plaintiffs were barred from filing this action because they failed to comply
with Defendant’s requests. Plaintiffs have not shown that this conclusion
constitutes a manifest error or warrants relief under Rule 59(e). See Hamler,
545 S.E.2d at 14 (“Hamler refused to comply with Allstate’s request for this
relevant information and breached her insurance contract. Summary judgment in
Allstate’s favor consequently was warranted.”).
3.

Mrs. Durden’s Medical Conditions

Plaintiffs also move for reconsideration on the grounds that Mrs. Durden, on
October 4, 2016, was diagnosed with medical conditions that rendered her “unable
to fully understand the requirement that she needed to produce all documents
requested by Defendant.” ([37] at 12). Plaintiffs claim “Mrs. Durden was
suffering from serious medical issues that resulted in her having cognitive
dysfunction and diminished capacity.” ([37] at 12). Plaintiffs rely on a one-page
check-list, dated October 4, 2016, in which Mrs. Durden’s physician diagnosed her
with chronic pain, cognitive dysfunction, chronic fatigue, menopause syndrome,
25

malaise, fatigue, IBS, chronic sinusitis, insomnia, sleep disorder, and arthralgia.
([37.1]).10 This list was not submitted to the Court before summary judgment was
entered on February 27, 2017. (See [36]).
Plaintiffs have not shown that Mrs. Durden’s medical conditions warrant
reconsideration of the Court’s February 2017 Order, including because the list of
medical conditions was not timely submitted to the Court and there is no record
evidence that Plaintiffs, including Mr. Durden, were unable to provide the
information requested by Defendant. There simply is no admissible or other
evidence to support that Mrs. Durden suffered from her diagnosed conditions
during the period in which she repeatedly refused to provide Defendant with the
requested information. Even if there was, there is no evidence that Mrs. Durden’s
conditions rendered her unable to understand or comply with Defendant’s requests,
or that Mr. Durden was unable to provide the information requested or unable to
help Mrs. Durden to do so. The undisputed evidence is that Mrs. Durden refused
to provide Defendant with the requested documents not because she was disabled
but because she believed the documents were “irrelevant” and that Defendant was
10

Although Plaintiffs submitted additional medical evidence with their pro se
Amended Motion for Reconsideration, this evidence is not properly before the
Court because it was submitted pro se while Plaintiffs were represented by
counsel. See LR 83.1(D)(2), NDGa.
26

“not legally entitled” to them. (Pl. Resp. DSMF ¶¶ 39, 50). At her EUO, for
example, during which she claims she was in good health, ([26.11] at 122, 124),
Mrs. Durden told Defendant it was “not legally entitled to the following documents
and records nor are these records relevant to [Plaintiffs’] claim: Bank statements
and records, tax returns, credit card statements, leases, Facebook, Twitter,
Instagram, or LinkedIn, bankruptcy records, phone records, moving truck, moving
van, moving service, and storage facility.” (Pl. Resp. DSMF ¶ 39). As explained
earlier in this Order, Georgia courts have held, in similar cases, that at least some
of this information is relevant and required to be produced to insurance companies
during their investigation of a claim. See Halcome, 334 S.E.2d at 157 (finding that
the insured’s financial records, including those showing recent income and sources
of income, were relevant and required to be produced to an insurance company);
Hamler, 545 S.E.2d at 13-14 (finding that the insured was required to provide the
following documents to her insurance company: “federal and state tax returns,”
“documentation reflecting income for [certain] years,” “telephone or other utility
bills,” “monthly credit card or other loan statements,” and “records showing
hospital admissions and discharges”). Mrs. Durden’s unwarranted belief that the
requested documents are irrelevant does not excuse her failure to produce them.

27

Mrs. Durden’s medical issues also do not constitute “newly-discovered
evidence,” under Rule 59(e), because she received her diagnoses almost five
months before the Court granted Defendant’s Motion for Summary Judgment. See
Arthur, 500 F.3d at 1343 (“The only grounds for granting a Rule 59 motion are
newly-discovered evidence or manifest errors of law or fact.”). Plaintiffs’ failure
to previously introduce Mrs. Durden’s medical evidence bars relief under
Rule 59(e). See Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763
(11th Cir. 2005) (“[A party] cannot use a Rule 59(e) motion to relitigate old
matters, raise argument or present evidence that could have been raised prior to the
entry of judgment.”); Mays, 122 F.3d at 46 (“[W]here a party attempts to introduce
previously unsubmitted evidence on a motion to reconsider, the court should not
grant the motion absent some showing that the evidence was not available during
the pendency of the motion.”).
The only evidence that Mrs. Durden suffered from medical issues before
October 4, 2016, is her own testimony that she suffered from “menopausal
symptoms” that delayed her EUO. ([26.11] at 120-124; [32.1] ¶¶ 35, 39).11
Mrs. Durden testified that she did not see a doctor about these symptoms and that,
11

Mrs. Durden testified that her menopausal symptoms included sweating,
inability to sleep, temperature fluctuation, lost hair, agitation, exhaustion, loss of
appetite, body aches, and concentration difficulties. ([26.11] at 120-124).
28

before her EUO, she “started taking some herbal medications . . . which worked,”
“calmed down” her symptoms, and made her “feel like a different person.”
([26.11] at 122, 124; see also [32.1] ¶ 39). This evidence previously was presented
to the Court and is insufficient to excuse Plaintiffs’ failure to comply with
Defendant’s document requests. Cf. Blackburn v. State Farm Fire & Cas. Co., 329
S.E.2d 284, 286 (Ga. Ct. App. 1985) (“The failure to comply with a condition
precedent to coverage on an insurance policy may be excusable if the insured is
dead, missing or physically or mentally disabled.”). Even assuming Mrs. Durden
was disabled, there is no evidence that Mr. Durden could not comply with
Defendant’s requests. Plaintiffs have not established “extraordinary
circumstances” warranting relief under Rule 59(e), and their Motion for
Reconsideration is denied. Adler, 202 F.R.D. at 675.12
12

To the extent Plaintiffs claim that “Mrs. Durden [initially] was told she had
two (2) years in which to commence legal action,” ([37] at 13), this argument
previously was presented to the Court, does not preclude summary judgment, and
does not warrant relief under Rule 59(e). (See, e.g., [31] at 9, 20); see
Owens v. Metro. Life Ins. Co., No. 2:14-cv-74, 2017 WL 106017, at *2 (N.D. Ga.
Jan. 11, 2017) (“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.”); Adler, 202 F.R.D. at 675 (“[A]
motion for reconsideration should not be used to reiterate arguments that have been
made previously.”); see also Hood, 300 F. App’x at 700 (“[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.”).
29

V.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Reconsideration of

this Honorable Court’s Granting of Defendant’s Motion for Summary
Judgment [37] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Extend Time for
Plaintiffs to Amend Motion for Reconsideration of this Honorable Court’s
Granting of Defendant’s Motion for Summary Judgment [39] is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Amended Motion for
Reconsideration of this Honorable Court’s Granting of Defendant’s Motion for
Summary Judgment [42] is DENIED.
IT IS FURTHER ORDERED that Michael B. Weinstein’s Motion to
Withdraw as Counsel for Tresa Durden f/k/a Tresa McCowell and Michael Lane
Durden [40] is DENIED.

SO ORDERED this 29th day of August, 2017.

30