Conrad v. CSX Transportation, Inc.
MEMORANDUM AND ORDER denying 50 Motion for Reconsideration. Signed by Judge Marvin J. Garbis on 6/24/2015. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM M. CONRAD
CSX TRANSPORTATION, INC.,
CIVIL ACTION NO. MJG-14-51
MEMORANDUM AND ORDER RE: RECONSIDERATION
The Court has before it Plaintiff's Annotated Motion for
Reconsideration of the Court's June 16, 2015 Order and Judgment
Granting CSXT's Motions to Preclude Expert Testimony and for
Summary Judgment [Document 50].
The Court finds that neither a
response nor a hearing is necessary.
Plaintiff seeks relief pursuant to Rule 59(e) [motion to
alter or amend a judgment] and Rule 60(b)(6) [motion for relief
from a final judgment for any other reason that justifies
relief] of the Federal Rules of Civil Procedure.
Plaintiff's motion was filed on June 24, 2015, within 28
days of the Court entering judgment.
Thus, the Court will treat
Plaintiff's motion as a Rule 59(e) motion.
See, e.g., Lewis v.
McCabe, Weisberg & Conway, LLC, No. CIV.A. DKC 13-1561, 2015 WL
1522840, at *1 (D. Md. Apr. 1, 2015) ("Because Plaintiff's
motion was filed within 28 days of the court entering judgment
it is governed by Fed.R.Civ.P. 59(e) rather than Rule 60(b),
which governs motions for reconsideration filed more than 28
days after judgment."); Classen Immunotherapies, Inc. v. King
Pharm., Inc., 981 F. Supp. 2d 415, 419 (D. Md. 2013) ("A motion
to alter or amend filed within 28 days of the judgment is
analyzed under Rule 59(e); if the motion is filed later, Rule
The United States Court of Appeals for the Fourth Circuit
"ha[s] recognized that there are three grounds for amending an
earlier judgment" under Rule 59(e):
to accommodate an intervening change in
available at trial; or
to correct a clear error
prevent manifest injustice.
Pac. Ins. Co. v. Am. Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998); see also Weyerhaeuser Corp. v. Koppers Co., 771 F.
Supp. 1406, 1419 (D. Md. 1991).
A motion for reconsideration "cannot be used to raise
arguments which could, and should, have been made before [the
determination on which reconsideration is sought was] issued."
Fed. Deposit Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.
Stated differently, "'[a] motion to reconsider is not a
license to reargue the merits or present new evidence.'"
Hopkins v. Prince George's Cnty., Md., 201 F. Supp. 2d 523, 524
(D. Md. 2002) (citation omitted).
Plaintiff states in his motion that he "testified [at his
deposition] that the parking lot, that had a hole or depression
that contributed to his fall, was unsafe."
[Document 50] at 5.
However, in his deposition testimony, Plaintiff distinguished
between purportedly unsafe "potholes" in the parking lot and the
"depression" into which he stepped.
When asked if he "step[ped]
in a pot hole," Plaintiff answered "[a] depression."
Dep. 172:5-6 (emphasis added).
Plaintiff then testified that
"guys . . . complained about pot holes and the condition of the
Id. 203:8-9 (emphasis added).
Plaintiff testified that the depression into which he stepped
was about three inches deep and "looked like it was where,
maybe, a tire spun."
Id. 95:8-11, 97:6-8 (emphasis added).
reasonable jury could find that Defendant failed to provide a
reasonably safe workplace by not constantly inspecting the
conditions of the parking lot so as to ensure that the lot was
clear of three-inch-deep depressions made by a tire spinning
Plaintiff also contends that "[t]he Court refused to accept
Plaintiff's testimony based on [an] erroneous premise" involving
self-serving deposition testimony.
[Document 50] at 7.
cases upon which Plaintiff relies do not, as Plaintiff contends,
mandate that in every situation "when deciding a motion for
summary judgment, the non-moving party's deposition must be
accepted as true . . . where it is the only evidence to support
See [Document 50] at 9 (emphasis added).
cases upon which Plaintiff relies, the court accepted selfserving factual testimony as true when that testimony was the
only evidence of the occurrence of a particular fact.1
e.g., Johnson v. Toys "R'' US-Delaware, Inc., 95 F. App'x 1, 6-7
(4th Cir. 2004) ("In her appellate brief, Johnson argues that
there is only one piece of direct evidence-the alleged statement
by Peters that Toys 'R' Us deactivated the cards because Johnson
Although Peters denies that he made such a
statement, for purposes of summary judgment we must accept
Johnson's testimony as true and determine whether a jury could
reasonably infer from Peters's statement that Toys 'R' Us
deactivated the gift cards because Johnson is an AfricanAmerican. (internal footnote and citation omitted)); Dukes v.
Plaintiff's reliance on Lambert v. Roechling Auto. Duncan,
LLP, No. CA 7:08CV0925GRABHH, 2009 WL 2430661 (D.S.C. Aug. 6,
2009) is misplaced because that case dealt with challenges to a
Plaintiff's testimony on evidentiary grounds. See id. at *6
("The Court concedes that the plaintiff relies heavily,
essentially exclusively, on his own testimony regarding the
comments of others. While this is problematic it is not fatal.
As an initial matter, the Court does not believe the statements
are impermissible hearsay. Namely, the plaintiff has recounted
statements made by other employees of the defendant which
arguably constitute a party admission admissible under
Fed.R.Evid. 801(d)(2)(D). . . . Accordingly, the Court will
consider it as effective evidence for purposes of summary
judgment." (internal citations omitted)).
Richards, No. 5:06-CT-3094-D, 2009 WL 9056101, at *4 n.4
(E.D.N.C. Aug. 27, 2009) ("For purposes of the summary judgment
motion, the court accepts plaintiff's deposition testimony [that
a police officer kicked him] as true.
The court notes, however,
that each officer involved in the raid provided an affidavit
stating that at no point did any of the officers kick or
otherwise assault plaintiff, nor did any of them observe the
plaintiff being kicked or otherwise assaulted, nor were any of
the officers informed by plaintiff that he had been kicked or
otherwise assaulted." (citations omitted)).
Here, however, Plaintiff's self-serving deposition
testimony relates, not to a fact – e.g., whether there was a
barrier that Plaintiff tripped over - but to Plaintiff's opinion
as to whether the barrier was a safety hazard.
testimony is insufficient to create a genuine issue of material
fact preventing summary judgment.
The Court finds none of the circumstances warranting an
amendment of the June 16 Decision to be present in the instant
There has been no change in controlling law, and no new
evidence has been proffered.
Nor is amendment necessary to
correct any error of law or to prevent injustice.
the extent there is anything in the instant motion beyond a
restatement of the basic arguments already presented, it does
not add any weight to the arguments rejected in the decision at
For the foregoing reasons:
Plaintiff's Annotated Motion for Reconsideration of
the Court's June 16, 2015 Order and Judgment
Granting CSXT's Motions to Preclude Expert Testimony
and for Summary Judgment [Document 50], is DENIED.
The Memorandum and Order Re: Summary Judgment and
Expert Testimony [Document 45] and the Judgment
Order [Document 46] issued herein remain in effect.
SO ORDERED, on Wednesday, June 24, 2015.
Marvin J. Garbis
United States District Judge
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