McDonald et al v. City Of Memphis, Tennessee; et al
Filing
50
ORDER denying 49 Motion for Reconsideration. Signed by Judge Samuel H. Mays, Jr on 07/15/2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
MICHAEL MCDONALD AND QUINTON
LYTLE,
Plaintiffs,
v.
CITY OF MEMPHIS, et al.,
Defendants.
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No. 12-2511
ORDER DENYING MOTION FOR RECONSIDERATION
Before the Court is Defendant Marico Flake’s (“Flake”) July
12, 2013 Motion for Reconsideration of the Court’s July 8, 2013
Order Granting in Part and Denying in Part Plaintiffs Michael
McDonald and Quinton Lytle’s (collectively “Plaintiffs”) First
Motion to Amend Complaint (“July 8 Order”).
(Mot. for Recon.,
ECF No. 49.)
For the following reasons, Flake’s Motion for
Reconsideration is DENIED.
I.
Background
The facts of this case are recited in the Court’s July 8
Order.
II.
(ECF No. 43.)
Standard of Review
A motion for reconsideration of an interlocutory order may be
granted if it complies with the requirements of Federal Rule of
Civil Procedure 54(b) and of Western District of Tennessee Local
Rule 7.3.1 Rule 54(b) states that “any order or decision...that
adjudicates
fewer
liabilities
of
than
fewer
all
than
the
all
claims
the
or
parties
the
rights
does
not
and
end
the
action as to any of the claims or parties and may be revised at
any time before the entry of final judgment adjudicating all the
claims and all the parties’ rights and liabilities.”
Circuit
recognizes
that
Rule
54(b)
gives
The Sixth
district
authority to hear motions for reconsideration.
courts
Rodriguez v.
Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th
Cir.
2004).
In
the
Sixth
Circuit,
“courts
will
find
justification for reconsidering interlocutory orders when there
is
(1)
an
intervening
change
of
controlling
law;
(2)
new
evidence available; or (3) a need to correct a clear error or
prevent manifest injustice.”
Id.
Courts in this District rely
on Local Rule 7.3 for further guidance.
See, e.g., Bullwinkel
v. United States DOE, No. 11-1082, 2013 U.S. Dist. LEXIS 25445,
at
*5-6
(W.D.
Tenn.
Jan.
17,
1
2013);
Ward
v.
Shelby
Cnty.
Flake’s Motion does not comply with the requirements of Local Rule 7.2. It
includes neither a proposed order nor a certificate of consultation with the
parties. W.D. Tenn. R. 7.2(a)(1)(A)-(B). Because no rule would prevent
Flake from refiling a conforming motion, and because the Court prefers to
expedite the determination of this matter, the Court will consider the
Motion.
2
Sheriff’s Dep’t, No. 10-02308, 2012 U.S. Dist. LEXIS 118359, at
*4 (W.D. Tenn. Aug. 22, 2012).
Under
Local
Rule
7.3,
“[b]efore
the
entry
of
a
judgment
adjudicating all of the claims . . . in a case, any party may
move, pursuant to Fed. R. Civ. P. 54(b), for the revision of any
interlocutory order made by that Court.”
W.D. Tenn. R. 7.3(a).
The moving party must specifically show:
(1) A material difference in fact or law from that which
was presented to the Court before entry of the
interlocutory order for which revision is sought, and
that in the exercise of reasonable diligence the party
applying for revision did not know such fact or law at
the time of the interlocutory order; or
(2) the occurrence of new material facts or a change
of law occurring after the time of such order; or
(3) a manifest failure by the Court to consider
material facts or dispositive legal arguments that
were
presented
to
the
Court
before
such
interlocutory order.
W.D. Tenn. R. 7.3(b); see also Reynolds v. FedEx Corp., No.
09-2692-STA-cgc, 2012 U.S. Dist. LEXIS 172751, at *14 (W.D.
Tenn. Dec. 4, 2012).
“Motions to reconsider . . . are used sparingly and in rare
circumstances.”
In re Southeastern Milk Antitrust Litig., No.
2:07-CV-208, 2011 U.S. Dist. LEXIS 95784, at *5 (E.D. Tenn. Aug.
25, 2011).
Although a court can grant motions to revise its
prior rulings, it “‘should not do so in the vast majority of
instances, especially where such motions merely restyle or
reshash the initial issues.’”
Id. (quoting White v. Hitachi
3
Ltd., No. 3:04-CV-20, 2008 U.S. Dist. LEXIS 25240, at *1 (E.D.
Tenn. March 20, 2008)).
Local Rule 7.3(c) “specifically
prohibits a party from using a Motion for Reconsideration to
‘repeat any oral or written arguments made by the movant in
support of or in opposition to the interlocutory order that the
party seeks to have revised.’”
Reynolds, 2012 U.S. Dist. LEXIS
172751, at *15 (quoting W.D. Tenn. R. 7.3(c)).
III. Analysis
Flake asks the Court to reconsider its July 8 Order to the
extent the Order grants Plaintiffs’ Motion to Amend Complaint to
add six police officers as defendants for Tennessee common law
claims of civil assault and battery, false arrest, and false
imprisonment.
(Mot. for Recon.)
He argues that the Plaintiffs’
amended state law claims are barred by the one-year statute of
limitations in Tenn. Code. Ann. § 28-3-104(a)(3), and that
amendment is therefore futile and should be denied.
(Id.)
Flake also argues that the Plaintiffs amended state law claims
do not relate back to the date of the filing of the original
Complaint because the proposed Defendant Officers did not have
notice of the claims against them during the limitation period.
(Id.)
Flake’s Motion satisfies neither the requirements of the Sixth
Circuit nor the requirements of Local Rule 7.3, and
reconsideration of the Court’s July 8 Order is unwarranted.
4
Flake does not allege that since the entry of the July 8 Order
there has been an intervening change of controlling law, that
new evidence has become available, or that the there is a need
to correct a clear error or prevent manifest injustice resulting
from the July 8 Order.
(See generally Mot. for Recon.);
Rodriguez, 89 F. App’x at 959.
Even if Flake had satisfied the Sixth Circuit requirements,
Local Rule 7.3 is explicit, “any party may move, pursuant to
Fed. R. Civ. P. 54(b), for the revision of any interlocutory
order made by that Court on any ground set forth in subsection
(b) of this rule.
Motions to reconsider interlocutory orders
are not otherwise permitted.”
added).
W.D. Tenn. L.R. 7.3(a) (emphasis
As stated above, there are only three permissible
grounds for reconsideration in Rule 7.3(b), and Flake’s
submission fails to “specifically show” any of them.
Id. at
7.3(b).
First, Flake does not allege “a material difference in fact or
law from that which was presented to the Court before entry of
the interlocutory order for which revision is sought, and that
in the exercise of reasonable diligence the party applying for
revision did not know such fact or law at the
interlocutory order.”
Id. at 7.3(b)(1).
time of the
Flake did not present
any factual or legal arguments directed to Plaintiffs’ Motion,
insofar as it sought to add Tennessee common law causes of
5
action, before the entry of the July 8 Order.
More importantly,
all of the substantive arguments Flake made in his Motion are
based on law and facts that were available to him at the time of
the Order, and he does not attempt to show otherwise.
(See
generally Mot. for Recon.; Mot. for Recon. Exhibits; ECF No. 491, 49-2.)
Flake’s Motion is merely a vehicle to state arguments
in opposition to Plaintiffs’ Motion to Amend that he chose not
to make previously.
Second, Flake does not show “the occurrence of new material
facts or a change of law occurring after the time of such
order.”
W.D. Tenn. L.R. 7.3(b)(2).
He does not allege that
there have been any such changes and, as stated above, relies
exclusively on facts and precedent that were available to him at
the time the July 8 Order was entered.
Third, Flake does not show “a manifest failure by the Court to
consider material facts or dispositive legal arguments that were
presented to the Court before such interlocutory order.” Id. at
7.3(b)(3).
Flake did not previously present any of the
arguments that he seeks to have the Court consider now and does
not attempt to show that the Court failed to consider any facts
or arguments timely presented by the Plaintiffs.
IV.
Conclusion
For the foregoing reasons, Flake’s Motion for Reconsideration
of the Court’s July 8 Order is DENIED.
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So ordered this 15th day of July, 2013.
s/ Samuel H. Mays, Jr.__
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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