Bell v. LNU et al

Filing 18

ORDER denying 17 Motion for Reconsideration. Signed by Chief Judge J. Randal Hall on 03/06/2019. (maa)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

ROGER J. BELL,

*
■k

Plaintiff,

*
5

V.

*

CV 118-071

*

JACK LNU and CHRIS LNU,

*
*

Defendants.

*

ORDER

Before the Court is Plaintiff's motion for reconsideration.

(Doc. 17.)

1.)

Plaintiff filed his complaint on April 16, 2018.

(Doc.

On April 20, 2018, Magistrate Judge Brian K. Epps ordered

Plaintiff to amend his complaint.
within

the

recommended

allotted

time.

that the

case

(Doc. 4.)

Magistrate

Judge

be dismissed.

(R.

Failing to do so
Epps
&

R.

reported
I,

Doc.

and
5.)

Thereafter, Plaintiff objected to the report and recommendation
(Doc. 7), Magistrate Judge Epps, again, ordered Plaintiff to amend

his complaint (Doc. 8), and, on May 29, 2019, Plaintiff filed an
amended complaint (Doc. 9).

The

amended

complaint

was

still

insufficient,

containing

deficiencies such as naming individuals as Defendants instead of
the employer, failing to provide any factual detail in support of
his check-the-box claims, and failing to make a demand for relief.
On June 12, 2018, Magistrate Judge Epps reported and recommended

that the amended complaint be dismissed without prejudice for:
(1) failing to follow a court order and (2) failing to state a

claim upon which relief could be granted.

(R. & R. II, Doc. 11,

at

thereto

3-6.)

Plaintiff

filed

an

objection

presenting

a

narrative of certain interactions between Plaintiff and Defendants

occurring before his termination.^
Plaintiff

was

given

(Doc. 14.)

multiple

opportunities

to

pleading deficiencies, yet Plaintiff failed to cure.

cure

his

Accordingly,

on July 2, 2018, the Court overruled the objection and adopted the

report and recommendation dismissing the case without prejudice.
(Order Adopting R. & R. II, Doc. 15.)

On July 5, 2018, Plaintiff

filed this one-paragraph motion for reconsideration stating that

he possesses a recording on his phone where a prior coworker told
him ^Vhat Chris was saying to Jack about firing me."

(Mot. for

Reconsideration, Doc. 17.)

In general,

[r]econsideration of a previous order is an

extraordinary remedy, to be employed sparingly."

Armbuster v.

Rosenbloom, No. l:15-cv-114, 2016 WL 1441467, at *1 (S.D. Ga. Apr.

11,

2016)

(internal

quotation

marks

and

citation

omitted);

Spellman v. Haley, No. 97-T-640-N, 2004 WL 866837, at *2 (M.D.

Ala.

Feb.

22,

2002)

(^'litigants

should

not

use

motions

reconsider as a knee-jerk reaction to an adverse ruling").

to

Because

^ The same day Plaintiff filed the objection, he filed another, similarly
deficient amended complaint.

(Doc. 13.)

it

is

not

an

reconsideration

appeal,
to

ask

''it

the

is

Court

improper
to

on

rethink

a

what

already thought through — rightly or wrongly."

motion

the

for

Court

has

Armbuster, 2016 WL

1441467, at *1 (internal quotation marks and citation omitted).
It is well established that "additional facts and arguments that
should have been raised in the first instance are not appropriate

grounds for a motion for reconsideration."

Gougler v. Sirius

Prods., Inc., 370 F. Supp. 2d 1185, 1189 (S.D. Ala. 2005) (citation
omitted);

see

also

Am.

Home

Assurance

Co.

v.

Glenn

Estess

&

Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985) (cautioning

against use of motion to reconsider to afford a litigant "two bites

at the apple"); Rossi v. Troy State Univ., 330 F. Supp. 2d 1240,
1249-50

(M.D.

Ala.

2002)

(denying

motion

to

reconsider

where

plaintiff failed to submit evidence prior to entry of order and
failed to show good cause for the omission).

Furthermore, "the

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).

And, ultimately, "the 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) (internal quotation marks and citation omitted).
A court may reconsider an order under either Federal Rule of
Civil Procedure 59(e) or 60.

Petitioner fails to note under which

rule he brings this motion for reconsideration; thus, it is up to

the Court to determine.

Simply put, ^^if a motion is filed within

twenty-eight days of judgment, the motion should be analyzed under
Rule 59."

Brown v. Spells, No. 7:ll-cv-91 (HL), 2011 WL 4543905,

at *1 (M.D. Ga. Sept. 30, 2011); accord Mahone v. Ray, 326 F.3d
1176, 1177 n.l (llth Cir. 2003).

Plaintiff filed his motion to

reconsider three days following the challenged order; thus, the

Court

analyzes

Plaintiff's

motion

under

Rule

59(e).

Reconsideration under Rule 59(e) is justified only when there is:

^Ml) an intervening change in controlling law; (2) the availability
of new evidence; or (3) the need to correct clear error or prevent

manifest injustice."

Schiefer v. United States, No. CV206-206,

2007 WL 2071264, at *2 (S.D. Ga. July 19, 2007); see also Arthur

V. King, 500 F.3d 1335, 1343 (llth Cir. 2007) (Rule 59(e) "cannot
be used to relitigate old matters, raise argument or present
evidence

that

could

have

been

raised

prior

to

the

entry

of

judgment." (citation omitted)).

Here,

Plaintiff

states

only

that

reconsideration

is

appropriate because of the recording on his phone. Thus, the only
potential reason for reconsideration is based on the availability
of new evidence.

New evidence warrants reconsideration only when

it was previously unavailable.

Durden v. State Farm Fire & Cas.

Co., No. 1:15-CV-3971-WSD, 2017 WL 3723118, at *6 (Aug. 29, 2017);
see also Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (llth Cir.

1997)

("[P]arties

cannot

introduce

new

evidence

post-judgment

unless they show that the evidence was previously unavailable.").
Plaintiff
unavailable;

does
thus,

not
it

state

this

recording

cannot

be

considered

was
new

previously
evidence.

Furthermore, this information is unrelated to the reasons the Court
dismissed Plaintiff's case.

Plaintiff's case was dismissed for

failing to cure multiple pleading deficiencies, as outlined above.
Plaintiff's

motion

to

reconsider

offers

no

new

evidence,

nor

evidence that would require the Court to reevaluate its previous
decision.

Thus, reconsideration is inappropriate, and the Court

DENIES Plaintiff's motion to reconsider.

{Doc. 17.)

ORDER ENTERED at Augusta, Georgia, this

day of March,

2019.

\

UNITED^^ATES DISTRICT COURT
m

DISTRICT OF GEORGIA