Risher v. United States of America
Filing
81
ORDER DENYING 77 Motion for New Trial. Signed by Judge Samuel H. Mays, Jr., on 4/28/2011. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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RICHARD CARLTON RISHER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
No. 08-2249
ORDER DENYING MOTION FOR NEW TRIAL OR ALTERATION OR AMENDMENT OF
JUDGMENT
Before the Court is the February 2, 2011 Motion for a New
Trial,
Altering
or
Amending
Judgment
(“Motion”)
Plaintiff Richard Carlton Risher (“Risher”).
filed
by
(Mot. for a New
Trial, Altering or Amending J., ECF No. 77.)
(“Pl.’s Mot.”)
Defendant United States of America (the “Government”) responded
in opposition on February 4, 2011.
(Def.’s Resp. Opposing Pl.’s
Mot. for New Trial or Alteration of J., ECF No. 78)
Resp.”)
Risher replied on March 8, 2011.
Def.’s Resp., ECF No. 80.)
(“Def.’s
(See Pl.’s Resp. to
(“Pl.’s Reply”)
Under Federal Rule of Civil Procedure 59(a)(1)(B), a court
may grant a new trial “after a nonjury trial, for any reason for
which
a
rehearing
has
heretofore
equity in federal court.”
been
granted
in
a
suit
Fed. R. Civ. P. 59(a)(1)(B).
in
“To
constitute proper grounds for granting a new trial, an error,
defect or other act must affect the substantial rights of the
parties.”
Walker v. Bain, 257 F.3d 660, 670 (6th Cir. 2001)
(citing Fed. R. Civ. P. 61); see also 11 Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 2805 (2d ed. 2010) (“Thus it is only those errors that have
caused substantial harm to the losing party that justify a new
trial.
Those errors that are not prejudicial do not call for
relief under Rule 59.”).
“That is to say, a trial court should
be most reluctant to set aside that which it has previously
decided unless convinced that it was based on a mistake of fact
or clear error of law, or that refusal to revisit the earlier
decision would work a manifest injustice.”
LiButti v. United
States, 178 F.3d 114, 118 (2d Cir. 1999) (citing Arizona v.
California, 460 U.S. 605, 618 n.8 (1983)); see also
Wright,
Miller & Kane, supra, at § 2804 (“A motion for a new trial in a
nonjury case or a petition for rehearing should be based upon
manifest error of law or mistake of fact, and a judgment should
not be set aside except for substantial reasons.”).
“Certainly,
a trial court should not grant a new trial simply because, like
the
proverbial
second
chance.”
not
better
apple,
case
the
demonstrated
if
losing
afforded
party
LiButti, 178 F.3d at 118-19.
has
a
the
it
Risher
present
at
believes
Here,
can
bite
that
the
another
Court’s
Memorandum Opinion and Order contained any mistakes of fact or
2
errors of law.
evidence
He argues that the Court should have weighed the
differently.
(See
Pl.’s
Mot.
1-4.)
In
doing
so,
Risher presents the same argument that this Court has already
(See id.)
considered and rejected.
For the reasons discussed
in the Memorandum Opinion and Order, the Court’s findings of
fact and conclusions of law remain the same.
(See Mem. Op. and
Order, ECF No. 75.)
Based on his demeanor while testifying,
contradictions
and
within
implausible
statements
during
his
testimony, and evidence suggesting that Risher had not told the
truth in the past,1 Risher was not a credible witness at trial.
The Court declines to accept his version of the facts.
Risher’s
criticisms
of
several
of
his
attorney’s
trial
decisions, such as not to call a witness or contact a safety
expert, are also insufficient to justify a new trial.
Pl.’s
Mot.
2;
Pl.’s
Reply
3.)
As
the
Second
Circuit
(See
has
suggested, Risher’s belief that he could present a better case
if afforded a new trial is not sufficient to grant a new trial.
See LiButti, 178 F.3d at 118-19.
Even if Risher’s attorney had
not made the decisions Risher criticizes, Risher would have lost
because he was at least fifty percent responsible for his fall,
1
For example, a physician who examined Risher in 2002 concluded that Risher
exaggerated his symptoms and had “a tendency to give away intentionally on
muscle testing in the right foot.” (Trial Ex. 25, at 1-2; see Trial Ex. 26,
at 1 (stating that “[t]he clinical picture is one of magnification and
exaggeration of his symptoms”).) A video shown at trial showing Risher using
exercise equipment also impeached Risher’s testimony about his physical
limitations.
3
it was not foreseeable that he would attempt to cross the hole
where he did rather than take a safe path at the hole’s corner
or
seek
assistance
from
an
officer
standing
nearby,
and
he
offered no evidence from a medical expert who was “reasonably
certain” about the cause of his medical condition.
Op. and Order 12-21.)
(See Mem.
Each reason is independently sufficient
to defeat Risher’s action.
(See id.)
Risher argues that he is disabled under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq., and that manifest
injustice
has
occurred
standard of review.
because
the
Court
(See Pl.’s Reply 1-2.)
applied
the
wrong
The Court applied
the correct standard of review, as discussed in the Memorandum
Opinion and Order.
to
Risher,
Even if the Government had breached its duty
Risher’s
claim
would
fail
because
of
Tennessee’s
modified comparative fault rule and Risher’s lack of evidence on
medical causation.
(See Mem. Op. and Order 12-15, 17-21.)
The Court’s findings of fact and conclusions of law remain
the same.
Risher has not demonstrated that any proper grounds
for granting a new trial exist.
any
error
occurred
affecting
Walker, 257 F.3d at 670.
He has not demonstrated that
his
substantial
rights.
See
The Court’s Memorandum Opinion and
Order was not based on a mistake of fact or clear error of law,
and refusal to revisit the earlier decision would not work a
manifest injustice.
LiButti, 178 F.3d at 118.
4
No substantial
reason
exists
to
set
aside
the
earlier
decision.
Risher’s
motion for a new trial is DENIED.
Under Federal Rule of Civil Procedure 59(e), “[a] motion to
alter or amend a judgment must be filed no later than 28 days
after the entry of the judgment.”
Fed. R. Civ. P. 59(e).
“To
grant a motion filed pursuant to Rule 59(e) of the Federal Rules
of Civil Procedure, there must be ‘(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.’”
Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir.
2009) (quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d
479, 496 (6th Cir. 2006)).
“The Rule 59(e) motion may not be
used to relitigate old matters, or to raise arguments or present
evidence
that
judgment.”
could
have
been
raised
prior
to
the
entry
of
Wright, Miller & Kane, supra, at § 2810.1; accord
Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008).
“A
motion under Rule 59(e) is not an opportunity to re-argue a
case.”
Sault Ste. Marie Tribe of Chippewa Indians v. Engler,
146 F.3d 367, 374 (6th Cir. 1998) (citation omitted).
Here, Risher has not demonstrated that the Court made a
clear error of law, offered newly discovered evidence, or argued
that
an
intervening
change
Alteration
or
amendment
action
the
merits
on
is
in
of
controlling
the
not
necessary
5
judgment
law
has
dismissing
to
prevent
occurred.
Risher’s
manifest
injustice.
Risher’s Motion seeks to relitigate old matters by
presenting arguments that this Court has already considered and
rejected in its Memorandum Opinion and Order.
demonstrated
that
alteration
or
amendment
dismissing his action would be appropriate.
at 474.
Risher has not
of
the
judgment
See Betts, 558 F.3d
Therefore, Risher’s motion for alteration or amendment
of the judgment is DENIED.
So ordered this 28th day of April, 2011.
s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR
UNITED STATES DISTRICT JUDGE
6
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