Argo et al v. Gregory et al

Filing 70

ORDER denying 53 Motion for Reconsideration re 51 Order on Motion for Summary Judgment. Signed by Judge J. Randal Hall on 11/25/2014. (thb)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

WILLIAM ARGO,

JOHNSON,

MICHAEL G.

and JOHN M.

*

SPANGLER,

*
*

Plaintiffs,

*
*

v.

*

CV

212-213

*

Sheriff TOMMY J. GREGORY,

*

in his official capacity,

*
*

Defendant.

*

ORDER

Presently
for

pending

reconsideration

Defendant's
Defendant's

motion
motion

before
of

for
is

the

this

Court
Court's

summary

hereby

DENIED

is

Defendant's

partial

judgment.1
for

the

motion

denial

(Doc.

reasons

set

of

53.)
forth

below.

1

Defendant characterizes the present motion as alternatively moving for

summary judgment.
In his first motion for summary judgment (doc. 51), the
Court addressed claims of age discrimination and retaliation, as well as
claims for disability discrimination.
Defendant's present motion does not
address any new legal claims.
"[I]t is improper for a party to file a
successive motion for summary judgment which is not based upon new facts and
which seeks to raise arguments i t could have raised in his original motion."
Campers' World Int'l,
Inc. v.
Perry Ellis Int'l,
Inc.,
221 F.R.D. 409
(S.D.N.Y. 2004).
The only "new evidence" presented by Defendant are two
affidavits from individuals whose depositions were relied upon with its
initial motion for summary judgment.
Thus, to the extent Defendant seeks to

re-litigate the issues already decided by the Court, the Court construes this
motion as one for reconsideration alone.

I.

STANDARD FOR RECONSIDERATION

Pursuant to Federal Rule of Civil Procedure 59(e),
may seek

to alter or

twenty-eight

days

u[R]©consideration
remedy,

to

be

2004)

after
of

a

employed

Catering & Serv.
Fla.

amend a

judgment

the

entry

previous

(citation

N.V.,

motion

ha[s]

for

to

xan

Supp.

omitted).

reconsideration

is

In

the

extraordinary

v.

fact,

Cruise

Court

a

is

to

1358

Inc.

(E.D.

Va.

08-23183,

v.

Bohannan

1983) , quoted

v.

at

Carey

*1

Roofing,

in Weitz

2009 WL 1636125,

Vidinliey

5459335,

Mel

at

Int'l,

(N.D.

Ga.

*1

Co.

v.

(S.D.

Inc.,

Dec.

Inc.,

15,

Fla.

No.

June

A

what

it

99,

101

Ins.

Co.,

No.

11,

2009)

and

l:07-cv-762,

2008) .

for

Above the

F.R.D.

Transp.

(S.D.

improper on a

rethink

99

Ships

motion

already thought through — rightly or wrongly."

Belt,

within

judgment.

2d 1347,

and thus it

"ask

case

the

Williams

320 F.

reconsideration is not an appeal,

civil

of

order

sparingly.'"

Int'l,

in a

a party

movant

2008

must

WL

"set

forth facts or law of a strongly convincing nature to induce the
court to reverse its prior decision."

Cover v. Wal-Mart Stores,

Inc., 148 F.R.D. 294, 294 (M.D. Fla. 1993)

Although
relief,
that

Rule

district

merit

59(e)

courts

does
in

reconsideration

not

this
of

set

Circuit
an

(citation omitted).

forth
have

order:

(1)

the

grounds

for

identified three
an

intervening

change in controlling law; (2) the availability of new evidence;
and

(3)

the

need

to

correct

clear
2

error

or

prevent

manifest

injustice.

Hamilton,
Salem,

See,

e.g.,

385 F. Supp.

Saxon

&

Ctr.

2d 1330,

Nielsen,

for

Biological

Diversity

v.

1337 (N.D. Ga. 2005) ; Sussman v.

P.A.,

153

F.R.D.

689,

694

(M.D.

Ga.

1994) .
"Motions

for

reconsideration

should

not

be

used

to

raise

legal arguments which could and should have been made before the

judgment was issued."

Lockard v. Equifax,

Inc.,

1267

see also Collins

v.

Int'l Longshoremen's

CV 209-093,

WL 393096,

(11th Cir.

Ass'n

Local

1423,

Ga.

2013 Jan.

be

used

lacking."
Vill.

to

1998);

30,

No.
2013)

relitigate

2013

163 F.3d 1259,

at

*1

("Motions for reconsideration should not

issues

which

have

already

been

(internal quotations omitted)); Michael Linet,

of Wellington,

("[A party]

cannot

Fla.,

use

(S.D.

408

F.3d 757,

a Rule

59(e)

763

motion

Inc. v.

(11th Cir.

to

found

2005)

relitigate

old

matters, raise argument or present evidence that could have been

raised prior to the entry of judgment.").
"is

not

a vehicle

for

Further,

Rule 59(e)

rehashing arguments already rejected by

the court or for refuting the court's prior decision."

Int'l

v.

Nu-Cape Constr.,

Inc.,

169 F.R.D.

680,

686

Wendy's

(M.D.

Ga.

1996) .

Where, as here, the motion for reconsideration is untimely,2
the movant must instead rely on Rule 60(b),

which allows a court

to "relieve a party or its legal representative from a final
2

Defendant filed his motion approximately forty days after the Court's

September 10, 2014 Order.
3

judgment,

order,

or

proceeding"

if

one

of

the

following

six

grounds are met:

(1)
mistake,
inadvertence,
surprise,
or excusable
neglect;
(2)
newly discovered evidence that,
with
reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b);

(3)

fraud
(whether
previously
called
intrinsic
or
extrinsic),
misrepresentation,
or misconduct by an
opposing party;
(4) the judgment is void;
(5) the
judgment has been satisfied, released or discharged;
it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that
justifies relief.
Fed. R. Civ. P.

2:13-cv-120,

60

(b) ; Graveling v.

2014 WL 5426811,

Sirote & Permute,

at *2

In contrast to a Rule 59 motion,

(S.D. Ala.

Oct.

P.C.,

24,

No.

2014).

one made under Rule 60(b)

need

only be made "within a reasonable time," but no longer than one

year after the entry of the order.
Under

Rule

60(b)(6)

"a

court

may

Fed. R. Civ. P.
grant

relief

for

60(c)(1).
any

reason justifying relief from the operation of judgment.
under

this

invoked

clause

only

Miller v.

is

upon

Brown,

No.

a

an

extraordinary

showing

of

l:12-cv-166,

remedy

exceptional

which

other

Relief
may

be

circumstances."

2014 WL 229481,

at *1 (S.D.

Ga. Jan. 17, 2014) (quoting Mitchell v. Miller, No. 4:99-cv-080,
2007 WL 1183896, at *1 (M.D. Ga. Apr. 19, 2007)).
II.

DISCUSSION

Even characterized as one under Rule 60, Defendant's motion

for reconsideration fails on the merits as it does not meet the

standards

of

arguments:

that

(1)

rule.

without

cannot

the

prove

pretextual.

In

any

diligence,

was

support

newly

on

of

hearsay

his

and

motion,

evidence

on

two

Plaintiffs
reason

with

was

does

not

reasonable

is his

In fact, the only additional evidence he

own affidavit and that of Michael Fender,
2,

2013.

"any other

Thus,

reason

Defendant must

that

justifies

722 F.2d 677,

("It

however,

well

60(b)(6)]

established,

680

that

has

relief."

relief

is an extraordinary remedy which may be

the
and

burden of

showing that

^unexpected'

United States v. Swift & Co.,

hardship
286 U.S.

under

See

1984)
[Rule

invoked only

The party seeking

absent
will

106,

who

rely on

(11th Cir.

upon a showing of exceptional circumstances.

^extreme'

(2)

Defendant

that,

Griffin v. Swim-Tech Corp.,

relief

motion

could not have been discovered in time for the motion

60(b)(6):

is

his

non-discriminatory

discovered

deposed on August

Rule

relying

legitimate,

for summary judgment.
presents

bases

Plaintiffs cannot prove a prima facie case of age

discrimination

present

Defendant

such relief,

result."
119

(1932)

an

(quoting
(internal

citations omitted)).

A. Prima Facie Case of Age Discrimination

Defendant first argues that the Court improperly relied on

hearsay statements in ruling that Plaintiffs met the prima facie
case.

With its September 10, 2014 Order,

detailed the factual basis for Plaintiffs'
5

the Court thoroughly
claims,

and thus does

not do so here.
focuses

on

As is relevant to the present motion, Defendant

three

instances

of

hearsay:

(1)

a

conversation

between Kevin Barber and Roger Dyals regarding comments Barber
allegedly heard Defendant make;

(2)

a statement made by Kevin

Barber that he did not understand why Defendant was trying to
get

rid

of

the

"greybeards;"

and

(3)

a

chart

used

to

show

a

pattern of hiring younger employees.
The

case

law

of

this

circuit

is

clear

that

"a

district

court may consider a hearsay statement in passing on a motion
for

summary

admissible

Jones v.

2012)

judgment

evidence

if

at

the

statement

trial

UPS Ground Freight,

or

683

(quoting Macuba v. Deboer,

1999)).

Here,

"whether

admissible

as

defendants

have made

reduced

admissible

to

presently

form."

Prince Hotel,

is

of

trial[.]

reduced

admissible

1293-94

are

or

moment[]

these

exhibits
course,

form."

(11th Cir.

no

Of

to

(11th Cir.

1322

exhibits

showing that
at

be

193 F.3d 1315,

plaintiff's

form

to

F.3d 1283,

submitted

no

each party's burden at

reduced

could

are

not

[b]ecause
cannot
it

be

remains

trial to present evidence in admissible

S.A. v. Blake Marine Grp.,

No.

11-0537-WS-

M, 2012 WL 4711897, at *1 n.5 (S.D. Ala. Oct. 2, 2012).

Even assuming that the aforementioned comments could not be
reduced

to

admissible

form,

Plaintiffs

still

sufficient evidence to meet the prima facie case.

presented

Excluding any

comments

made,

Plaintiffs

offered

the

following

as

circumstantial evidence of intent:

•

Defendant's

departure

from

the

employee

ranking

system;

•

•

The actual severity of the budget shortfall; and

•

Simply

Defendant's
hiring
of
two
deputies
outside
the
protected class days before terminating Plaintiffs;

Defendant's
hiring of
individuals
outside
protected class subsequent to the layoffs.

put,

sufficient

the

evidence

discrimination.

Defendant

Court

has

to

This

is

satisfied

set

forth

a

conclusion is

failed

to

present

that
prima

Plaintiffs
facie

evidence

of

the

produced

case

bolstered by the

any

of

of

age

fact

that

hardship,

extreme or otherwise, that would necessitate reconsideration.
B. Pretext for Age Discrimination

Defendant

next

quarrels

with

the

Court's

genuine issue of material fact as to pretext.
Defendant

challenges

each

of

the

Court's

presents

prior to Plaintiffs'

argument
layoffs;

as to
(2)

(1)

of

a

In its motion,

stated

attempt to re-litigate previously decided issues.
Defendant

finding

bases

in

an

Specifically,

the individuals

hired

the hiring subsequent to the

layoffs; (3) the deviation from the ranking system; and (4) the
discriminatory comments.

Here, Defendant does "not present newly-discovered evidence
or manifest errors necessary for the grant of a

[]

motion for

reconsideration.

Instead,

his

motion

improperly attempt[s]

to

relitigate old matters by rehashing arguments he had previously
made."

Allaben v.

2014).

Coupled with Defendant's failure to present any evidence

of hardship,

Howanitz,

579

F.

extreme or otherwise,

App'x

716,

719

(11th

Cir.

Defendant has failed to meet

his burden and his motion for reconsideration as to the pretext
issue must fail as well.
III.

The

Court

has

CONCLUSION

thoroughly considered

the

issues

that

form

the basis of its prior ruling and finds neither a reason nor a

legal basis for reconsidering its previous order.
motion

for

reconsideration

of

this

Court's

Defendant's

September

10,

2014

Order denying in part Defendant's motion for summary judgment
(doc.

53)

is therefore DENIED.

ORDER ENTERED at Augusta, Georgia,
November,

this

0(0^ day of

2014.

HONQRJpEE J./RANDAL HALL
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA