Garner v. City of Memphis, et al.

Filing 43

ORDER. Signed by Judge Samuel H. Mays, Jr on 09/23/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

WINSTON GARNER,
Plaintiff,
v.
CITY OF MEMPHIS, et al.,
Defendants.

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No. 12-2152

ORDER DENYING PLAINTIFF’S MOTION TO RECONSIDER AND VACATE AND
GRANTING IN PART DEFENDANT’S MOTION TO DISMISS

Before this Court is Plaintiff Winston Garner‟s (“Garner”)
July 31, 2013 Motion to Reconsider and Vacate the Court‟s Order
to Dismiss the City of Memphis and to Allow an Amended Complaint
to Proceed Against the City of Memphis (Garner‟s Mot. to Recon.
And Vac., ECF No. 35; Garner‟s Mem. of Law, ECF No. 35-1.)
Defendant the City of Memphis (the “City”) responded on August
8, 2013.
I.

(Resp., ECF No. 40.)
Background

The facts of this case are recited in the Court‟s July 23,
2013 Order.

(July 23 Order, ECF No. 34.)

On January 22, 2013,

the City filed a motion to dismiss for failure to state a claim.
(Mot. to Dismiss, ECF No. 17.)

On July 23, 2013, the Court

entered an Order granting the City‟s motion to dismiss Garner‟s
claims against the City, the City of Memphis Police Division,

and John Does 1-10 in their official capacity.

(July 23 Order.)

The Court ordered Garner to show cause within fourteen (14) days
why claims against John Does 1-10 in their individual capacity
should not be dismissed.
II.

(Id.)

Standard of Review

Garner does not cite authority for his Motion to Reconsider
and

Vacate.

The

Federal

Rules

of

Civil

Procedure

do

not

contemplate such motions, but the Sixth Circuit has held that a
motion to reconsider and vacate may be properly treated as one
to alter or amend a judgment under Rule 59(e).

Smith v. Hudson,

600 F.2d 60, 62 (6th Cir. 1979); United States v. Jarnigan, No.
3:09-CR-7, 2008 U.S. Dist. LEXIS 101768, at *2 (E.D. Tenn. Dec.
17, 2008).
“A motion to alter or amend a judgment shall be filed no
later than 28 days after entry of the judgment.”
Proc. 59(e).

Fed. R. Civ.

The Sixth Circuit has held that a court may grant

a motion to alter or amend a judgment only if there was “„(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.‟”

ACLU of Ky. v. McCreary Cnty., 607 F.3d

439, 450 (6th Cir. 2009) (quoting Intera Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005)).

Motions to reconsider judgments

“are extraordinary and sparingly granted.”

2

Marshall v. Johnson,

No. 3:07-CV-171-H, 2007 U.S. Dist. LEXIS 29881, at *4 (W.D. Ky.
April 19, 2007).
“Newly

discovered

evidence”

previously available to the movant.
Underwriters,
omitted).

178

F.3d

Evidence

804,

that

834

was

not

is

evidence

that

was

not

GenCorp, Inc. v. Am. Int‟l
(6th

Cir.

1999)

“previously

(citation

available”

is

evidence the movant did not discover until after the judgment.
Gritton v. Disponett, 332 F. App‟x 232, 239 (6th Cir. 2009).

“A

plaintiff cannot use a Rule 59 motion [] to raise arguments
which could, and should, have been made before judgment issued.”
Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612,
616 (6th Cir. 2010) (internal quotation marks omitted).
III. Analysis
Garner argues that, based on newly discovered evidence, the
Court‟s dismissal of the City is improper.

Garner contends

that, at the time of his arrest, the City had in place a written
policy that violated his constitutional rights.

Garner states

that he “had no way to know that the City {} had a written
policy in place that violated his Constitutional rights” until
“[t]hrough

the

written

discovery

process

.

deposition process, the policy was discovered.”

.

.

and

the

(Garner‟s Mot.

to Recon. and Vac., ECF No. 35 at 1; Garner‟s Mem. of Law, ECF
35-1 at 2.)

3

Garner discovered the policy the week of June 10, 2013,
when the City responded to Garner‟s interrogatories and requests
for production of documents, and Garner deposed four City police
officers.

(Notice of Disc. Resp., ECF No. 26; Notice to Take

Depos. of Officer Stark, ECF No. 27; Notice to Take Depos. of
Officer Wilkie, ECF No. 28; Notice to Take Depos. of Officer
Scoggins, ECF No. 29).

The newly discovered evidence was in

fact discovered before the judgment equivalent in this case, the
July

23

Order.

A

motion

to

amend

the

complaint

“could,

and

should, have been made before judgment issued” five weeks after
discovery.

See

Leisure

Caviar,

quotation marks omitted).

616

F.3d

at

616)

(internal

Garner did not seek to amend his

complaint before the July 23 Order.
Garner fails to address the Court‟s July 23 Order to show
cause why claims against John Does 1-10
capacity should not be dismissed.

in their individual

(July 23 Order, ECF No. 34.)

Garner‟s time to show cause expired on August 6, 2013.
Order.)

(July 23

Garner offers no explanation why John Does 1-10 were

not timely named and the time to explain has passed.
IV.

Conclusion

For the foregoing reasons, the Motion to Reconsider and
Vacate the Court‟s Order to Dismiss the City of Memphis and to
Allow

an

Amended

Memphis is DENIED.

Complaint

to

Proceed

Against

the

City

of

The City‟s Motion to Dismiss for failure to
4

state a claim is GRANTED as to Garner‟s claims against John Does
1-10 in their individual capacity.

So ordered this 23rd day of September, 2013.

s/ Samuel H. Mays, Jr.______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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