Hewitt v. Western and Southern Financial Group Flexible Benefits Plan et al
MEMORANDUM OPINION & ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Reconsider DE 31 be OVERRULED. Signed by Judge Henry R. Wilhoit, Jr on 7/7/17.(KSS)cc: COR, Hewitt (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 16-120-HRW
ALLEN R. HEWITT,
MEMORANDUM OPINION AND ORDER
WESTERN AND SOUTHER!'\' FINANCIAL GROUP
FLEXIBLY BENEFITS PLAN
THE WESTERN AND SOUTHERN LIFE INSURANCE CO.,
This matter is before the Court upon Plaintiffs Motion to Reconsider [Docket No. 31 ].
The motion has been fully briefed by the parties [Docket Nos. 31, 33 and 34]. For the reasons set
forth herein, the Court will overrnle the motion.
Plaintiff commenced this action under the Employee Retirement Income Security Act
("ERISA") to recover benefits he claimed he was owed from Defendants Western and Southern
Financial Group Flexible Benefits Plan and The Western and Southern Life Insurance Company
(collectively "Defendants") for an experimental and investigative procedure on his second toe.
Despite having been previously advised by Defendants repeatedly that the Plan required him to
bring any lawsuit within six months after the Defendants' November 6, 2015 denial of his appeal,
Plaintiff nonetheless waited ten months to file the present suit. Defendants moved to dismiss the
Complaint. [Docket No. 8] The issue was fully and extensively briefed by the parties [Docket
Nos. 13, 15, 18 and 19].
By Memorandum Opinion and Order entered on May 1, 2017, this Court sustained
Defendants' motion dismissed Plaintiffs case against Defendants as time-barred. [Docket No.
Plaintiff now asks the Court to revisit its decision.
The standards for reconsideration are necessarily high. There are only three grounds upon
which a district court may amend its judgment: ( l) to accommodate an intervening change in
controlling laws; (2) to account for new evidence not available previously; and (3) to correct a
clear error of law or to prevent manifest injustice. See Fed.R.Civ.P. 59(e); Henderson v. Walled
Lake Consol. Selis., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Jn/era Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005)). A party may not utilize a Rule 59(e) motion to re-litigate issues
the Court previously considered. See Tennessee v. Waters, Nos. 3: 10-CV-176, 3: 1O-CV-268,
201lWL540543, at *l (E.D. Tenn. Feb. 8, 2011) (slip copy) (citing Keweenaw Bay Indian
Onty. v. United States, 940 F. Supp. 1139, 1141 (W.D. Mich. 1996)). Additionally, a party
wishing to alter or amend a judgment may not "raise arguments which could, and should, have
been made before judgment issued." See Sault Ste. Marie 7i'ibe of Chippewa Indians v. Engler,
146 F.3d 367, 374 (6th Cir. 1998). Motions for reconsideration likewise do not allow the losing
party to attempt to supplement the record with previously available evidence. See Tolbert v.
Potter, 206 F. App'x 416, 417-18 (6th Cir. 2006); Emmons v. lvlcLaughlin, 874 F.2d 351, 358
(6th Cir. 1989).
This Court finds that none of these reasons set forth in Rule 59(e) are presented by
Plaintiff. He does not offer any new fact or law on which the Court may find reconsideration
appropriate. Nor is there manifest injustice which must be corrected in this record. Indeed, the
bulk of his motion is devoted to reiterating arguments previously raised, calling into question
this Court's interpretation of the law and asserting that this Court's decision was incorrect.
However, merely "claiming that the Court misinterpreted the applicable facts and law ... is not a
basis to find a clear error oflaw or manifest injustice." Nayyar v. Mt. Carmel Health Sys., 2014
U.S. Dist. LEXIS 19916, *9-10 (S.D. Ohio Feb. 18, 2014); see also Settle-lv!uter Electric, Ltd. v.
Siemens lndu.wy, Inc., 2016 U.S. Dist. LEXIS 127995, at *5 (S.D. Ohio Sept. 20, 2016).
Plaintiff also raises two arguments heretofore not presented. First, he asks the Court to
"address whether Article I gives Congress the power to prevent states from applying applicable
civil laws to ERISA plans and whether § 1144 may permissibly be read to avoid unconstitutional
events." Second, he argues that, hypothetically, if the Plan were only partially-funded, then a
state stat11te of limitations should apply to his claims, rather than the limitations period provided
in the Plan. Neither arguments is proper for reconsideration as they could have, and perhaps
should have, been raised initially. This is a not the rare case where an intervening change in the
law or newly discovered evidence forms the basis of a new legal the01y. Rather, Plaintiff seeks
a second bite at the proverbial apple.
A Ruic 59 motion is not an opportunity to reargue a case,
but that is all that Plaintiff seeks to do. This is insufficient for this Court to disturb its original
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Reconsider [Docket
No. 31] be OVERRULED.
This+ day of July, 2017.
~ Signed By:
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United States Ol111trl11t JudgG
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