Proctor v. GEICO Insurance Agency, Inc.
Filing
84
MEMORANDUM OPINION & ORDER: (1) DENYING Proctor's 77 MOTION to Alter Judgment as to 72 Judgment, 71 Memorandum Opinion & Order; (2) Proctors motion to reopen the case [DE 83] is construed by the Court as a reiteration of the earlier motion to alter or amend; (3) DENYING Proctor's 83 MOTION to Reopen Case. Signed by Judge Joseph M. Hood on 3/12/19.(KJR)cc: COR, Proctor (US Mail). Modified text on 3/12/2019 (KJR).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LAWRENCE PROCTOR,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
GEICO GENERAL INSURANCE
COMPANY,
Defendant.
Case No.
5:17-cv-348-JMH-MAS
MEMORANDUM OPINION
AND ORDER
***
Plaintiff Lawrence Proctor’s former attorney filed a motion
to alter or amend the Court’s previous order and judgment granting
summary judgment in favor of GEICO Insurance.
[DE 77].
Now
Proctor is proceeding pro se and has filed a motion to reopen the
case in lieu of replying to the response in opposition to the
motion to alter or amend.
[DE 83].
Still, Proctor has not
submitted any new evidence that suggests that the Court’s judgment
should
be
altered
and
the
motion
to
alter
judgment
reiterates arguments that the Court has already considered.
simply
As a
result, Proctor’s motion to alter or amend [DE 77] and motion to
reopen the case [DE 83] are DENIED.
I.
Procedural and Factual Background
On January 2, 2019, the Court granted summary judgment for
GEICO
Insurance
after
finding
that
Proctor
had
knowingly
misrepresented the purchase price of the RV relevant to this
insurance dispute.
It was undisputed that Proctor initially told
the insurance adjuster that he had paid $16,000 for the RV.
[DE
71; DE 72].
On January 29, 2019, the Court received a letter from Proctor,
filed in the record [DE 76] stating, among other things, that he
had actually paid $7,000 for the RV and asserting that he was
having a dispute with his attorney.
In response, on January 30,
2019, Proctor’s former attorney, Than Cutler, filed a motion to
alter or amend the judgment [DE 77] and a motion to withdraw as
Proctor’s attorney [DE 78].
Then,
Proctor
has
mailed
a
letter
to
the
Court
with
a
notarized exhibit that asserted that Proctor paid $7,000 for the
RV.
[DE 80].
Proctor contends that the document indicating that
he only paid $5,000 for the RV is fraudulent, stating that “the
document was faked and provided to the court to sway the court in
their favor.”
But the RV sales documents indicating that Proctor
paid $5,000 for the RV were submitted by Proctor’s former attorney
as Exhibit 2 to the response in opposition to GEICO’s motion for
summary judgment.
[DE 49-2].
Proctor’s letter also indicated
that he was no longer represented by counsel.
After reviewing the letter and attachments, the Court granted
Cutler’s motion to withdraw as counsel.
[DE 79].
The Court also
urged Proctor to consult the Local Rules, especially Local Rule
7.1(c) pertaining to the time allowed to respond and reply to
motions and encouraged Proctor to consult with an attorney.
2
[Id.]
The order also required that the Court’s standard packet for pro
se filers be sent to Proctor.
[Id.].
GEICO responded in opposition to the motion to alter or amend.
[DE 82].
Then, Proctor filed a motion to reopen the case that
simply requests that the case be reopened and that a jury trial be
held.
[DE 83].
As a result, this matter is ripe for review.
II.
Legal Standard
Federal Rule of Civil Procedure 59(e) permits a party to file
a motion to alter or amend a judgment within 28 days after the
entry thereof.
“A court may grant a Rule 59(e) motion to alter or
amend if there is: (1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or (4) a
need to prevent manifest injustice.”
Intera Corp. v. Henderson,
428 F.3d 605, 620 (6th Cir. 2005).
“A
motion
under
Rule
59(e)
does
not
simply
provide
an
opportunity to reargue a case, and it must be supported either by
a showing that the district court made an error of law or by newly
discovered evidence.”
Whitehead v. Bowen, 301 F. App’x 484, 489
(6th Cir. 2008) (citing Sault Ste Marie Tribe of Chippewa Indians
v. Engler, 146 F.3d 367, 374 (6th Cir. 1998); Roger Miller Music,
Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 395 (6th Cir.
2007)).
The Rule is not “a substitute for appeal.”
Turner v.
City of Toledo, 671 F. Supp. 2d 967, 969 (N.D. Ohio 2009).
“If .
. . a Rule 59 motion merely quibbles with the Court’s decision,
3
the proper recourse is not a motion for reconsideration but instead
an appeal to the Sixth Circuit.”
Zell v. Klingelhafer, No. 13-
cv-458, 2018 WL 334386, at *4 (S.D. Ohio Jan. 8, 2018).
III.
Analysis
In the motion to alter or amend, Proctor stated, “The sole
issue upon which Plaintiff urges the Court to vacate its prior
order is the Court’s finding that Plaintiff’s misrepresentation
regarding the purchase price of the RV was knowingly made.”
[DE
77-1 at 1, Pg ID 1060]. Proctor asserts that his misrepresentation
regarding the purchase price was not knowingly made due to memory
issues and medications that affect his memory.
[Id.].
But this
argument was directly addressed and denied by the Court in the
previous memorandum opinion and order.
[DE 71 at 21-23, Pg ID
1032-34].
To reiterate, it is undisputed that Proctor misstated the
purchase
price
of
the
RV.
Chris
Cirillo,
a
Senior
Field
Investigator working on behalf of GEICO Insurance, asked Proctor
how much money he paid for the RV, to which Proctor responded, “I
don’t really remember. I take a lot of medicine.”
Pg ID 557].
[DE 41-4 at 37,
Cirillo responded by saying, “We’re going to need to
find out . . . . Or you can tell me if you remember.”
[Id.].
Proctor replied, “16 something. I don’t know what it was. I don’t
know who I can find out from.”
thousand?”
[Id.].
[Id.].
Proctor replied, “Yeah.”
4
Cirillo asked, “16 what,
[Id.].
It is true that Proctor told Cirillo that he had memory
problems.
Still, when asked about the purchase price, Proctor
affirmatively stated that he had paid over $16,000 for the RV.
Proctor did not indicate that he did not know the purchase price.
He also did not ask for additional time to find out the correct
purchase price.
When asked about the purchase price, Proctor
affirmatively stated that he paid “16 something” for the RV. Then,
after Cirillo followed-up on to confirm that Proctor meant $16,000,
Proctor said that was what he meant, without qualification or
reservation.
More
importantly,
Proctor
had
ample
opportunity
to
investigate and correct his mistake but did not do so until after
this lawsuit was filed.
At a deposition in May 2018, Proctor
testified that he purchased the RV for $7,000.
ID 637].
[DE 41-10 at 4, Pg
Then, Proctor submitted RV Sales Documents as an exhibit
to his response in opposition to the motion for summary judgment.
[DE 49-2]. These documents indicate that Proctor paid a base price
of $4,682.00 and that the total purchase price of the RV was $5,000
after taxes and fees.
[[DE 49-2 at 1, Pg ID 758].
The Transfer
of Title also indicates that Proctor paid $4,682.00 for the RV.
[DE 41-7].
Now, Proctor claims that this misrepresentation was not made
knowingly but was instead made innocently due to memory issues.
During a deposition, Proctor stated that he has memory loss because
5
he takes prescription medications Warfarin and Lyrica.
[DE 49-1
at 3, Pg ID 743].
Still,
as
the
Court
previously
discussed,
there
is
no
objective evidence in the record that indicates that Proctor
suffers
from
memory
misrepresentation.
loss
that
could
explain
his
material
The only evidence that Proctor suffers from
memory loss is the unsupported allegation from Proctor himself.
Proctor has provided no evidence that he has previously complained
of or has been treated for a mental health or memory loss issue.
Additionally, Proctor has provided no evidence that this memory
loss issue has affected his life in other ways.
Finally, Proctor
has presented no medical evidence that indicates that memory loss
is a potential side effect of the prescription medications that he
takes.
Moreover, even after the Court pointed to these evidentiary
deficiencies, Proctor has failed to provide any new evidence or
new argument that would support his memory loss claims.
In sum,
there is simply no objective evidence in the record that could
lead a reasonable jury to believe that Proctor suffers from a
memory loss problem that is so severe that it caused him to commit
a misrepresentation of this magnitude.
Ultimately, there is no genuine dispute of material fact about
whether
Proctor
knowingly
made
a
material
Proctor says he paid $7,000 for the RV.
6
misrepresentation.
Regardless, whether the
RV purchase price was $5,000 or $7,000 Proctor’s statement that he
paid at least $16,000 for the RV was significantly inaccurate.
This
material
misrepresentation
regarding
the
purchase
price
entitled GEICO to deny coverage under the insurance policy.
Finally, the Court construes Proctor’s motion to reopen the
case as a reiteration of his earlier motion to alter or amend the
Court’s judgment.
[Compare DE 77, with DE 83].
Still, at this
point, Proctor is merely quibbling with the Court’s previous
decision and the proper recourse is an appeal.
If Proctor chooses
to continue this matter and take an appeal, the Court again urges
Proctor to consult with an attorney because time is of the essence
to ensure that a timely notice of appeal is filed.
IV.
Conclusion
Here, Proctor has not submitted any new evidence that suggests
that the Court’s judgment should be altered and the motion to alter
judgment simply reiterates arguments that the Court has already
considered.
(1)
Accordingly, IT IS ORDERED as follows:
Proctor’s motion to alter or amend judgment [DE 77] is
DENIED;
(2)
Proctor’s motion to reopen the case [DE 83] is construed
by the Court as a reiteration of the earlier motion to alter or
amend; and
(3)
Proctor’s motion [DE 83] is DENIED.
This the 12th day of March, 2019.
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