Barkhorn v. Ports America of Baltimore (Chesapeake) et al

Filing 202

MEMORANDUM OPINION AND ORDER denying 195 Motion of plaintiff to vacate, alter or amend judgment; motion for further action; motion to strike; motion to grant deference or weight to the Seniority Agreement Injunction; and motion to grant deference, weight or total judgment to the 14th Amendment Claim in Amended Complaint. Signed by Magistrate Judge Susan K. Gauvey on 11/4/13. (c/m 11/5/13 jnls, Deputy Clerk) Modified on 11/5/2013 (jnls, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
RONALD BARKHORN, et al.,

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Plaintiffs
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V.
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PORTS AMERICA CHESAPEAKE

Defendants

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CIVIL NO. SKG-10-00750

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MEMORANDUM OPINION AND ORDER
This action was brought by plaintiffs Ronald Barkhorn, Mike
Schultz, Rick Delawder, and John Delawder against Ports America
Chesapeake LLC (“Ports America”) claiming associational
discrimination and retaliation under the Americans with
Disability Act (“ADA”), Rehabilitation Act, and Maryland antidiscrimination laws.

Judgment was entered against plaintiffs on

March 29, 2013 after a five-day bench trial.

(ECF No. 189).

Now before the Court are plaintiffs’ motions to vacate, alter or
amend judgment; motion for “further action;” motion to strike;
motion to “grant deference or weight to the Seniority Agreement
Injunction;” and motion to “grant deference, weight or total
judgment to the 14th Amendment Claim in Amended Complaint.”

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(ECF

No. 195, 5-6).

For the reasons discussed herein, plaintiffs’

motions are DENIED.
I.

Standard

Two rules allow for reconsideration of a final judgment.
Fed. R. Civ. P. 59(e) permits a party to file a “motion to alter
or amend a judgment . . . no later than 28 days after the entry
of the judgment.”

Fed. R. Civ. P. 60(b) provides for “relief

from a final judgment, order, or proceeding.”

Plaintiffs cite

to both rules in their motions, requesting that the court
“vacate its judgment pursuant to Rule 59 or 60 to correct
mistakes from untrue testimony and surprise from information and
evidence not provided in discovery.”

(ECF No. 195, 7).

As

such, the Court will consider plaintiffs’ motion under both Rule
59 and Rule 60.

To the extent that plaintiffs ask for relief

independent of these rules, as in their request for the Court to
“strike documents,” and “grant deference or weight” to the
Harvey Decree, these requests are not properly before the Court.
At this point in proceedings the Court may only consider motions
under Rule 59 and 60.
Under Federal Rule of Civil Procedure 59(e), within 28 days
after entry of judgment a party may file a motion to alter or
amend judgment.

FED. R. CIV. P. 59(e).

The Fourth Circuit has

recognized three grounds for altering or amending a judgment
under Rule 59(e): (1) to accommodate an intervening change in
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controlling law; (2) to account for new evidence not available
at trial; or (3) to correct a clear error of law or prevent
manifest injustice.

Pacific Ins. Co. v. Am. Nat'l Fire Ins.

Co., 148 F.3d 396, 403 (4th Cir. 1998).

The purpose of this

analysis is to allow a district court “to correct its own
errors, sparing the parties and the appellate courts the burden
of unnecessary appellate proceedings.”
quotations omitted).

Id.(citations and

Relief under Rule 59 is considered an

“extraordinary remedy which should be used sparingly.”
(quoting 11 Wright et al., FEDERAL PRACTICE

AND

Id.

PROCEDURE § 2810.1 (3d

ed.).
Rule 60 allows for relief from a final judgment for the
following reasons: (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. 60(b).

Before a party may seek relief under Rule 60, however, they must
make a threshold showing of timeliness, a meritorious defense, a
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lack of unfair prejudice to the opposing party, and exceptional
circumstances.

Dowell v. State Farm Fire & Casualty Auto. Ins.

Co., 993 F.2d 46, 48 (4th Cir. 1993)(citations and quotations
omitted).

II.

Analysis

Plaintiffs make a series of scattered arguments in support
of their motions.

To the extent necessary, the Court will deal

with each in turn.

A. ADA Discrimination and Retaliation Claims
The majority of plaintiffs’ 44-page brief repeats the facts
and legal arguments presented at trial.

Neither Rule 59 nor 60

allow a losing party to re-litigate a dispute.

Pacific Ins. Co.

v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. Va.
1998); Haynes v. United States, No. PJM 02-3850, 2010 U.S. Dist.
LEXIS 74017 (D. Md. July 21, 2010).

The Court found in its

March 2013 opinion that the ordering of the Delawder/Singer gang
was properly based on safety, productivity, reliability, and
qualifications, and was unaffected by the allegedly disabling
injury to Terry Neblitt or grievances filed by Mr. Barkhorn.
The claims to the contrary in plaintiffs’ motions simply repeat
those made at trial.

Plaintiffs lengthy re-hash of these

arguments, without any claim that the law has changed or the

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Court made a clear error in its application, does not merit
consideration here.

B. Discovery Claims
Plaintiffs also repeat arguments made during the discovery
process.

On February 26, approximately a week before trial,

defendants presented an argument in briefing regarding the
rationale for gang ordering in May 2008.

(ECF No. 169, 3).

Specifically, they argued that plaintiffs’ gang was set back in
gang ordering in May because of an incident on April 30th 2013 in
which their crane operator struck a container with the crane’s
spreader, causing property damage.

(Id.).

A Ports America

event report documenting the incident was attached as an
exhibit.

(ECF No. 169-4, 1).

As the alleged disability that

triggered discrimination occurred in April 2008, the gang order
in May (and the months following) was relevant to the dispute.
Plaintiffs argued at the time that because this new
argument and evidence was untimely, “Defendant should be
precluded from offering this evidence and making these arguments
at trial.”

(ECF No. 173, 1).

Defendants responded that this

“new” argument was consistent with their long-stated claim that
gang ordering was not related to disability, but rather to
safety and productivity, and noted that plaintiffs had never
requested this information in any of their discovery requests.

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(ECF No. 175, 1).

As such, defendants maintained that the

argument was neither new nor untimely.

Id.

In a telephone

conference on February 28, the Court agreed with defendants.
(Id.).

In their current motion, plaintiffs again allege that

timing of this production did not adequately allow them to
prepare for trial.

(ECF No. 195-1, 28-31).

In general, “it is inappropriate to use a motion to amend
the judgment pursuant to Rule 59(e) as a vehicle to remedy
perceived deficiencies in the discovery process.”

Johnson v.

BAC Home Loans Servicing, LP, 2012 U.S. Dist. LEXIS 5532
(E.D.N.C. Jan. 18, 2012); Donahue v. Occidental Chem. Corp., No.
98-1803(2), 2000 U.S. Dist. LEXIS 1229, at *4, (E.D. La. Feb. 3,
2000).

While Rule 60(b)(3) arguably allows a party to move for

relief based on a showing of “misconduct” during the discovery
process, plaintiffs have made no such showing.

Hirsch v. Nova

Southeastern Univ., Inc., 289 Fed. Appx. 364, 367 (11th Cir.
Fla. 2008).

They have offered no material new evidence or

advanced any argument beyond those rejected by the Court on this
issue prior to trial.1

The Court found previously that the

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 Plaintiffs do produce a work order report that purportedly shows that the
crane operator was not replaced on the day of the April 30 incident for
mandatory interviewing and drug testing. (ECF No. 195-1, 30). It is
difficult to follow plaintiffs’ argument in this respect, but they seem to
suggest that this fact proves that the incident was not the fault of the
operator, but instead a mechanical failure that should not have affected
gang-ordering. (Id.). The argument has several flaws. First, the event
report indicates that the incident was first reported on 5/01/2008, which
suggests that there was no known reason to replace the operator on 4/30/2008.
Second, the operator first reported that the incident was a result of

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evidence produced by defendants was not encompassed within
plaintiffs’ discovery requests, and as such was not untimely
produced.

Further, defendants are under no obligation to alert

plaintiffs to each individual argument to be raised at trial,
especially those consistent with defendants’ clearly stated
theory of the case.

Plaintiffs have demonstrated no good reason

to reconsider these findings.

C. Pretrial Conference
Plaintiffs complain that they were “ordered not allowed [sic]
in pretrial hearings and process.”

(ECF No. 195, 6).

They

state that although they requested to attend the pre-trial
conference, their attorney informed them the Court had only
requested the attendance of counsel.

(ECF No. 195, 6).

The Court did order plaintiffs’ attorney, in accordance with
Rule 16, to attend a pretrial conference.

FED R. CIV. P. 16

(“[T]he court may order the attorneys and any unrepresented
parties to appear for one or more pretrial conferences. . .”).
The Court likely would have had no objection to plaintiffs’
attendance, but it never received a request from plaintiffs’
counsel for his clients to attend.

Without any Court action on

mechanic failure, not human error, which may have negated the initial need to
replace the operator for an interview and drug testing. In any event, the
Court found that plaintiffs failed to demonstrate associational
discrimination under the ADA based on nearly two years of reports regarding
gang ordering. Even if the Court were to find that this to be viable “new”
evidence, it is limited in scope and relevance and would not change the
result of the case.        

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this matter, plaintiffs have raised no actionable claim under
Rule 59 or 60.

D. Count II of Plaintiffs’ Complaint
Count II of plaintiff’s complaint was dismissed without
prejudice by Judge Bredar in 2011.

Plaintiffs now complain that

this dismissal was in error, and, although their motion is
unclear, seem to argue that Count II should be reinstated to
allow plaintiffs to bring claims under the 14th Amendment and the
Harvey Decree.
improper.

(ECF No. 195-1, 1-2).

This argument is plainly

Judge Bredar’s decision is over two years old: this

is the first time plaintiffs have complained about its
conclusion with regard to Count II.

A party may not use a post-

judgment motion “to raise arguments which could have been raised
prior to the issuance of judgment.”

Pacific Ins. Co. v. Am.

Nat'l Fire Ins. Co., 148 F.3d 396, 404 (4th Cir. 1998); see also
Almy v. Sebelius, 749 F. Supp. 2d 315, 338 (D. Md. 2010).

In

addition, neither Rule 59 nor Rule 60 may be used as a device to
bring entirely new claims not brought before the Court at trial.
Id. at 403.

Finally, even if these claims were proper, any

claim under the forty-year-old Harvey Decree holds little chance
of success, as noted by this Court in a related case.

Sewell v.

Int'l Longshoremen's Ass'n, No. SKG-12-00044, 2013 U.S. Dist.
LEXIS 43615 at * 37 (D. Md. Mar. 27, 2013).

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III. Conclusion
For the reasons discussed herein, plaintiffs’ motions are
DENIED.

Date:

11/04/2013

/s/
Susan K. Gauvey
United States Magistrate Judge 

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