Pearson v. Augusta, Georgia et al
ORDER denying 201 Motion for Certificate of Appealability; denying 202 Motion for Entry of Judgment under Rule 54(b); denying 203 Motion for Reconsideration; denying 204 Motion for Leave to File. Signed by Chief Judge J. Randal Hall on 08/21/2017. (pts)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
MELINDA BEASLEY PEARSON,
AUGUSTA, GEORGIA through its
Mayor Hardie Davis, Jr., in his
official capacity, and its
commission, in its official
capacity et al.,
Augusta both moved for reconsideration.
on the majority of Plaintiff's
summary judgment to Plaintiff.
A. Certificate of Appealability Under 28 U.S.C.
Entry of Judgment Under Rule 54 (b)
Under 28 U.S.C. § 1292(b), a district court may certify in
writing that an interlocutory order "involves a controlling
question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the
litigation . . . ."
The requesting party may then apply to the
court of appeals for leave to appeal, and the court of appeals
may, "in its discretion, permit an appeal to be taken from such
order . . . ."
A "controlling question of law" is one that is purely legal
and requires little review of the record.
McFarlin v. Conseco
Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004).
There is a
"substantial ground for difference of opinion" when the district
court and the court of appeals are not in "complete and
unequivocal agreement" about the issue.
omitted) (internal quotation marks omitted).
See id^ (citation
And an immediate
appeal "may materially advance the ultimate termination of the
litigation" when "resolution of a controlling legal question
would serve to avoid a trial or otherwise substantially shorten
Id^ at 1259.
In short, "§ 1292(b) appeals were intended, and should be
reserved, for situations in which the court of appeals can rule
on a pure, controlling question of law without having to delve
beyond the surface of the record in order to determine the
"[t]he legal question must be stated at a
high enough level of abstraction to lift the question out of the
details of the evidence or facts of a particular case and give
it general relevance to other cases in the same area of law."
And resolving that question must "substantially reduce the
amount of litigation left in the case."
Under Rule 54(b), a district court "may direct entry of a
final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no
just reason for delay."
In deciding whether there is no "just
reason for delay," district courts "must take
judicial administrative interests as well as the equities
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
8 (1980) .
And district courts should strive to ensure "that
application of [Rule 54(b)] effectively preserves the historic
federal policy against piecemeal appeals."
omitted) (internal quotation marks omitted).
controlling question of law as to which there is substantial
ground for difference of opinion under § 1292(b).
And the Court
declines to find that there is no just reason for delay under
The Court therefore DENIES Plaintiff's motion for a
of appealability and her motion for an entry of
(Docs. 201, 202.)
District courts have discretion under Rule 54(b) to revisit
Mannion, No. 1:10-cv-3374-WSD, 2013 WL 5999657, at *2 (N.D. Ga.
Nov. 12, 2013).
But a court should exercise that discretion and
grant a motion for reconsideration only when (1) the controlling
law has changed,
(2) new evidence has been discovered, or (3)
there is a need to correct clear error.
Raiford v. National
Hills Exchange, LLC, No. l:ll-cv-152, 2016 WL 2908412, at *2
(S.D. Ga. May 17, 2016).
And "the moving party must set forth
facts or law of a strongly convincing nature to induce the court
to reverse its prior decision . . . ."
Voter Verified, Inc. v.
Election Sys. & Software, Inc., No. 6:09-cv-1969-Orl-19KRS, 2011
WL 3862450, at *2 (M.D. Fla. Aug. 31, 2011) (citation omitted)
(internal quotation marks omitted).
remedy to be
Indeed, reconsideration "is
(citation omitted) (internal quotation marks omitted).
to reconsider therefore "should not be used to present the Court
with arguments already heard and dismissed, or to offer new
legal theories or evidence that could have been presented inprior motions.
Mannion, 2013 WL 5999657, at *2.
For the third time,
Plaintiff asks the Court to reconsider
its decision to grant summary judgment in favor of Defendants on
her procedural due process claim.
But because Plaintiff has not
pointed to any change in the law or new evidence or shown that
the Court committed clear error, Court DENIES Plaintiff's motion
C. Leave to Amend
Plaintiff also seeks leave to amend her complaint.
Because Plaintiff has not shown good cause to amend the
scheduling order, see Fed. R. Civ. P. 16(b)(4), and because
Evergreen Foliage v. E.I. DuPont De Nemours and Co., 470 F.3d
1036, 1041 (11th Cir. 2006), the Court DENIES Plaintiff's motion
ORDER ENTERED at Augusta, Georgia this <2^_ daY,of August,
UNITEDS^ATES DISTRICT COURT
IERN DISTRICT OF GEORGIA
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