Smith v. Wallace et al

Filing 108

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's Motion to Alter or Amend Judgment Pursuant to Rule 59(e) (Docket No. 104) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 11/29/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DERRICK RAY SMITH,

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Plaintiff,
v.
IAN WALLACE, et al.,
Defendants.

No. 1:14-CV-146-SNLJ

MEMORANDUM AND ORDER
This matter is before the Court upon plaintiff Derrick Ray Smith’s Motion to Alter or
Amend Judgment Pursuant to Rule 59(e). (Docket No. 104). Defendants have not responded to
the motion, and the time for doing so has passed. The motion will be denied.1
On October 12, 2016, this Court dismissed plaintiff’s cause of action under Federal Rule
of Procedure Rule 41(b) due to plaintiff’s failure to prosecute his case. (Docket No. 102).
Specifically, the Court determined that plaintiff refused to appear for his own deposition despite
defense counsel and a court reporter appearing at his place of incarceration at the pre-determined
time.

The Court concluded that plaintiff’s failure to attend his own deposition was in

contravention of this Court’s Case Management Order, which justified sanctions pursuant to
Rule 37 of the Federal Rules of Civil Procedure. The Court also noted that, although plaintiff
had filed numerous documents with the Court in the preceding month, he had not responded in
any way to the defendants’ motion to dismiss.

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On October 31, 2016, plaintiff filed a Notice of Appeal. Normally, the filing of a notice of appeal divests the
district court of control over the case. Liddell by Liddell v. Board of Educ. of City of St. Louis, 73 F.3d 819, 822 (8th
Cir. 1996). In the context of a Rule 60(b) motion (which is similar to a Rule 59(e) motion as is pending here), a
district court may consider the motion “on the merits and deny it even if an appeal is already pending in this court”
but a remand of the case is necessary if the district court decides to grant the motion. Hunter v. Underwood, 362
F.3d 468 (8th Cir. 2004).

In the instant motion, filed October 24, 2016, plaintiff argues that defendants’ notice of
deposition violated Rule 30(b) and this Court’s Case Management Order because both required
“reasonable notice” of the deposition, and defendants gave him only twelve “working” days’
notice. (Docket No. 104 at 2). Citing no authority, plaintiff contends that thirty days’ notice is
required to be deemed “reasonable”, absent a showing of a need for haste. (Id.). Plaintiff also
suggests that defendants lacked leave of Court to take his deposition. Plaintiff’s arguments are
unavailing.
Federal Rule of Civil Procedure 59(e) motions “serve the limited function of correcting
manifest errors of law or fact or to present newly discovered evidence.” United States v.
Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Innovative Home
Health Care, Inc. v. P.T.-O.T. Associates of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.
1998)). Such motions do not allow a party to re-litigate matters previously resolved by the court
or to raise arguments or present evidence that could have been presented prior to the entry of
judgment, unless good cause is shown for such failure. Holder v. United States, 721 F.3d 979,
986 (8th Cir. 2013); Innovative Home Health Care, 141 F.3d at 1286.
Upon review of the instant motion, the Court concludes that it fails to point to any
manifest errors of law or fact, or any newly discovered evidence. Instead, the motion can be said
to merely revisit old arguments, or attempt to raise new ones without providing good cause for
the failure to raise them prior to the entry of judgment. Plaintiff is therefore not entitled to relief
under Rule 59(e). See id.
The arguments plaintiff raises would be unavailing even if plaintiff had raised them at an
appropriate time. Plaintiff contends that defendants’ notice of deposition was not “reasonable”
because it was not given thirty days prior to deposition. While it is true that a party must give
“reasonable written notice” of the taking of a deposition, there is no authority for the conclusion

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that notice of fewer than thirty days is per se unreasonable. In fact, the determination of whether
the notice given can be deemed “reasonable” is highly fact-specific, and depends upon the
circumstances of the particular case. Notice of a single day has been approved in some cases,
notice of two days was deemed unreasonable in others absent some showing of a need for haste,
and notice of six or eight days has been upheld. See 8A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, Federal Practice and Procedure § 2111 at p. 519-20 (3d ed.); Pearl v. Keystone
Consol. Industries, Inc., 884 F.2d 1047 (7th Cir. 1989) (six days’ notice was reasonable); United
States v. Acambaro Mexican Restaurants, Inc., No. 08-50009, 2008 WL 509467, at *1 (W.D.
Ark. Feb. 22, 2008) (seven days’ notice was reasonable), United States v. Reyes, No. 08-50007,
2008 WL 509546 (W.D. Ark. Feb. 22, 2008) (same); Jones v. United States, 720 F. Supp. 355,
366 (S.D.N.Y. 1989) (eight days’ notice was reasonable).
In the case at bar, plaintiff contends that defendants mailed the notice of deposition on
August 12, 2016, that he received it on August 15, 2016, and the deposition was scheduled for
August 30, 2016. (Docket No. 104 at 2). The deposition was scheduled to be held at the
institution at which plaintiff was incarcerated, necessitating no travel or special arrangements on
his part. Taking plaintiff’s contention regarding his receipt of the notice as true, he received it
fifteen days before the deposition was scheduled to be held. While plaintiff contends that he
needed time to prepare, he does not explain, nor is it apparent to the Court, why fifteen days’
notice was insufficient preparation time, or how a longer period of time would have rendered
him able to sufficiently prepare. Finally, this Court’s Case Management Order expressly granted
defendants leave of court to depose plaintiff, (Docket No. 56, ¶ 5), defeating plaintiff’s argument
that defendants lacked such leave. The Court therefore concludes that plaintiff’s motion should
be denied.
Accordingly,

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IT IS HEREBY ORDERED that plaintiff’s Motion to Alter or Amend Judgment
Pursuant to Rule 59(e) (Docket No. 104) is DENIED.
Dated this 29th day of November, 2016.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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