Gale v. Uintah County et al

Filing 210

MEMORANDUM DECISION AND ORDER denying 203 Defendants' Motion for Reconsideration. Signed by Judge Robert J. Shelby on 10/5/21. (dla)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DENILE GALE,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTION FOR RECONSIDERATION

Plaintiff,
v.

Case No. 2:13-cv-725-RJS-DBP

UINTAH COUNTY, et al.,

Chief District Judge Robert J. Shelby

Defendants.

Chief Magistrate Judge Dustin B. Pead

Before the court is Defendants’ Motion for Reconsideration of Plaintiff’s Motion for New
Trial.1 For the reasons explained below, the Motion is DENIED.
BACKGROUND
Plaintiff Denile Gale brought this suit against Defendants Uintah County, Sheriff Jeff
Merrell, and Loren Anderson, alleging violations of his First Amendment and due process rights
stemming from his termination from his job as a Uintah County corrections officer.2 Gale
alleges he was terminated in retaliation for campaigning for Sheriff Merrell’s challenger, Rick
Reynolds, in a local election.3 Defendants contend Gale was fired for violating a policy that
prohibited giving prescription medication to inmates.4

1

Dkt. 203.

2

See Complaint (Dkt. 2) ¶ 16–34 (bringing claims for violation of procedural due process and violation of 42 U.S.C.
§ 1983).
3

Id. ¶ 6–10, 28.

4

See, e.g., Motion for Summary Judgment (Dkt. 33) at 2–3.

1

Before trial, in response to Defendants’ Motion for Summary Judgment,5 Gale submitted
the “Declaration of Lamar Davis” (hereinafter 2014 Declaration).6 Therein, Davis states Gale
campaigned for Reynolds openly and vocally, this information was “common knowledge in the
community and the Sheriff’s Office,” and that he was “certain that Sheriff Merrell was also
aware of Mr. Gale’s support and campaign activities.”7 Davis also states that other employees
committed more egregious disciplinary violations but were not terminated from their jobs, and
that Amber Williams, the employee who first reported Gale for the policy violation, had
misconduct issues of her own.8
While Gale neglected to list Davis in his initial disclosures, Defendants included him in
theirs.9 Defendants nonetheless moved to strike Davis’s testimony because he was not identified
in Gale’s initial disclosures.10
On August 4, 2015, Judge Tena Campbell granted summary judgment as to Defendant
Anderson, but denied it as to Defendants Merrell and Uintah County.11 In the summary
judgment memorandum decision, Judge Campbell also denied Defendants’ Motion to Strike
Davis’s Testimony, citing the Woodworker’s Supply factors and finding harmless Gale’s failure
to list Davis as a potential witness.12

5

Id.

6

Exhibit C re: Memorandum in Opposition to Summary Judgment (Dkt. 41-3).

7

Id. ¶ 3.

8

Id. ¶ 4–9, 13–14.

9

See Order and Memorandum Decision (Dkt. 52) at 3 n.8.

10

Reply to Response to Motion for Summary Judgment (Dkt. 48) at 15–16.

11

See Order and Memorandum Decision (Dkt. 52).

Id. at 3 n.8 (citing Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)).
The Woodworker’s Supply factors are used to consider whether a party’s failure to provide information or identify a
witness in their initial disclosures—as required by Federal Rule of Civil Procedure 26(a) or (e)—is substantially
justified or harmless. Judge Campbell discussed Defendants’ longstanding knowledge of Davis and the lack of
evidence of bad faith on Gale’s part in declining to strike Davis’s testimony.
12

2

Before trial, Defendants filed a Motion in Limine to exclude Davis’s testimony for the
same reason: Gale’s omission of Davis from the initial disclosures.13 Judge Campbell granted
that Motion in part, limiting Davis’s testimony to “topics arising out of his testimony at the posttermination hearing—thus excluding Davis’s testimony on topics including Gale’s campaign
activities.14 Judge Campbell did not cite the Woodworker’s Supply factors in granting the
Motion in Limine.15 In February 2016, the case was tried before a jury that returned a verdict in
favor of Defendants.16
Following an unsuccessful motion for a new trial, Gale appealed to the Tenth Circuit.17
The Tenth Circuit found that Judge Campbell had abused her discretion in disallowing parts of
Davis’s testimony at trial without considering the Woodworker’s Supply factors, and remanded
the case with instructions to consider those factors in a Motion for a New Trial.18 Following the
Tenth Circuit’s ruling, Judge Campbell recused herself from the case and Judge Waddoups was
reassigned in her place.19 On December 31, 2018, Gale again moved for a new trial, arguing that
the exclusion of testimony had affected his “substantial right” to fully try his case.20 On October
10, 2019, Judge Waddoups granted the motion.21 A second trial was originally scheduled to
commence in spring of 2020, but due to the ongoing COVID-19 pandemic, the trial date has

13

Motion in Limine (Dkt. 58) at 2–7.

14

Order Granting in Part and Denying in Part Motion in Limine (Dkt. 92) at 1–2.

15

See id.

16

Jury Verdict (Dkt. 103).

17

Motion for New Trial (Dkt. 111); Order Denying Motion for New Trial (Dkt. 120); Notice of Appeal (Dkt. 123).

18

See Mandate of U.S. Court of Appeals (Dkt. 145) at 13.

19

Order of Recusal (Dkt. 146).

20

Motion for New Trial (Dkt. 147) at 11–13.

21

Dkt. 159.

3

been delayed. In the interim, Judge Waddoups recused himself from the case and it was
reassigned to the undersigned.22
Defendants have now filed a Motion for Reconsideration of Plaintiff’s Motion for a New
Trial.23 Defendants argue that based on the “newly available evidence” of a 2019 deposition of
Lamar Davis (hereinafter 2019 Deposition), Davis’s testimony would not be admissible at trial
and, therefore, excluding it at the original trial did not affect Plaintiff’s “substantial right.”24
ANALYSIS
The court begins by deciding which legal standard to apply in assessing Defendants’
Motion for Reconsideration—namely, whether the court should review the Motion under Federal
Rule 54(b) or Rule 60(b)(6). Construing Defendants’ Motion for Reconsideration under Rule
54(b), the court then addresses Defendants’ arguments under that standard.
I.

Standard of Review
Although not formally recognized by the Federal Rules of Civil Procedure, motions for

reconsideration are generally construed under Rule 54(b), Rule 59(e), or Rule 60(b), depending
on when the motion is filed.25 Motions for reconsideration filed before entry of final judgment
are construed under Rule 54(b).26 Rule 54(b) provides that “any order . . . that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at

22

Order of Recusal (Dkt. 167).

23

Motion for Reconsideration (Dkt. 203).

24

See id. at 1.

25

See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005) (citing Fed. R. Civ. P. 59(e), 60(b), and 54(b)).

See id. (“[E]very order short of a final decree is subject to reopening at the discretion of the district judge.”)
(quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) and citing Fed. R. Civ. P.
54(b)).
26

4

any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.”27
Defendants purportedly bring their Motion for Reconsideration under Rule 60(b)(6).28 In
Opposition, Gale argues, inter alia, that the Motion for Reconsideration is procedurally improper
under Rule 60 because there is no final judgment or order in this case.29 Defendants reply that
Rule 54 “is also available” as an avenue for relief.30
Because there is no final order in this case, Defendants’ Motion for Reconsideration is
properly construed under Rule 54(b). And as such, the court “is not bound by the strict standards
for altering or amending a judgment [under Rules 59(e) and 60(b)].”31
While a district court has “plenary power to revisit and amend interlocutory orders as
justice requires” under Rule 54(b), the “basic assessment” of a motion for reconsideration is the
same as under Rules 59(e) and 60(b).32 Motions for reconsideration may only be granted based
on the availability of new evidence, an intervening change in the controlling law, or the need to
correct clear error or prevent manifest injustice.33 A motion for reconsideration therefore may be
granted only where “the court has misapprehended the facts, a party’s position, or the controlling

Fed. R. Civ. P. 54(b); see also, e.g., Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir. 1988) (“It is within
the District Judge’s discretion to revise his interlocutory orders prior to entry of final judgment.”).
27

28

See Motion for Reconsideration (Dkt. 203) at i; Reply (Dkt. 209) at 1–2.

29

Opposition (Dkt. 204) at 1–2.

30

Reply (Dkt. 209) at 2.

31

Spring Creek Exploration & Production Company, LLC, v. Hess Bakken Investment, II, LLC, 887 F.3d 1003,
1023–24 (10th Cir. 2018) (internal quotations and citations omitted).
32

Id. at 1025 (internal quotations and citations omitted).

33

Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995); see also Pia v. Supernova Media,
Inc., No. 2:09-cv-840-DN-EJF, 2014 WL 7261014, at *2 (D. Utah Dec. 18, 2014) (internal quotation marks and
citations omitted) (“There are three scenarios in which a litigant may successfully argue for reconsideration: when
(1) substantially different, new evidence has been introduced; (2) subsequent, contradictory controlling authority
exists; or (3) the original order is clearly erroneous.”).

5

law”34—in other words, only in “extraordinary circumstances.”35 The Tenth Circuit has
additionally cautioned:
“[A] motion for reconsideration . . . [is an] inappropriate vehicle[] to reargue an
issue previously addressed by the court when the motion merely advances new
arguments, or supporting facts which were available at the time of the original
motion. Absent extraordinary circumstances . . . the basis for the second motion
must not have been available at the time the first motion was filed . . . It is not
appropriate to revisit issues already addressed or advance arguments that could
have been raised in prior briefing.”36
Thus, motions for reconsideration should be denied when movants use them as vehicles to
advanced arguments made earlier in the litigation.37
II.

Defendants’ Motion for Reconsideration
For two reasons, Defendants ask the court to reconsider its Order granting a new trial.

First, they argue reconsideration is warranted based on the 2019 Deposition, “new evidence
previously unavailable.”38 Second, Defendants contend it is required to avoid clear error or
manifest injustice.39 Gale disagrees, and argues the Motion is procedurally improper and
understates the relevance of Davis’s testimony.40 The court addresses each argument in turn.

34

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (explaining nearly identical Rule 59(e)
motion for reconsideration standard).
35

Van Skiver v. United States, 952 F.2d 1241, 1244–45 (10th Cir. 1991).

Servants of Paraclete, 204 F.3d at 1012; see also Albright v. Attorney’s Title Ins. Fund, No. 2:03-cv-00517, 2008
WL 376247, at *2 (D. Utah. Feb. 11, 2008) (denying motion for reconsideration where Plaintiffs “merely disagree
with the order, restate their previous arguments and assert new arguments that were available to them at the time of
the original briefing”); The SCO Group, Inc. v. Novell, Inc., No. 2:04-cv-00139, 2007 WL 2746953, at *1 (D. Utah
Sept. 14, 2007) (“A motion to reconsider must be made upon grounds other than a mere disagreement with the
court’s decision and must do more than rehash a party’s former arguments that were rejected by the court.”).
36

37

See, e.g., Servants of Paraclete, 204 F.3d at 1012; United States v. Koerber, 966 F. Supp. 2d 1207, 1211–12 (D.
Utah 2013) (denying motion for reconsideration when the legal arguments and facts in motion for reconsideration
were available at the time of the original motion).
38

Reply (Dkt. 209) at 2.

39

Id.

40

Opposition (Dkt. 204) at 1–3.

6

a. Defendants Fail to Argue the 2019 Deposition is “Newly Available Evidence”
Defendants contend the court should reconsider its Order granting a new trial based on
newly available evidence: the 2019 Deposition. “Newly available evidence” is either evidence
that is “newly discovered” and thus was unavailable at the time of the original motion, or
evidence that was available but “counsel made a diligent yet unsuccessful attempt to discover
[it].”41 This term does not include new evidence reflecting underlying information that was
previously available.42 In other words, “newly available evidence” must contain new
information, it is not repackaged information previously known or available to the parties.43
Moreover, a motion for reconsideration may be granted based on newly available evidence only
if the movant can demonstrate that the new evidence would have changed the original motion’s
outcome.44
The party bringing a motion for reconsideration bears the burden of demonstrating
evidence is either “newly discovered” and “was unavailable” when the original motion was filed,
or was available but counsel made a “diligent yet unsuccessful attempt” to discover it.45 To meet

41

Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir. 1994).

42

See, e.g., Spring Creek Exploration, 887 F.3d at 1023–25 (finding that documents not previously filed but in
party’s possession throughout litigation did not constitute “newly available evidence”); Grynberg v. Ivanhoe Energy,
Inc., 490 Fed. App’x 86, 101–02 (10th Cir. 2012) (unpublished) (explaining evidence is not “new evidence
previously unavailable” when “underlying information” contained in a piece of new evidence “clearly did exist”
during the time period of claimed unavailability).
Comm. For First Amendment v. Campbell, 962 F.2d 1517, 1523–24 (10th Cir. 1992) (upholding a district court’s
denial of a motion for reconsideration on the basis of new evidence based on the lack of “an explanation of why
Plaintiffs waited three months to submit additional evidence, and then as part of a [motion for reconsideration]”);
see also Zurich N. Am. v. Matrix Service, Inc., 426 F.2d 1281, 1289–90 (10th Cir. 2005) (evidence not “newly
discovered” when movant “knew [the evidence] was missing almost a year prior to the start of trial and made no
attempt to explicitly include it in the discovery process”); Dronsejko v. Thornton, 632 F.3d 658, 672 (10th Cir.
2011) (upholding denial of motion for reconsideration where movant “never adequately explained why they could
not have discovered the evidence.”).
43

See, e.g., Zurich, 426 F.3d at 1290 (movant must show “the newly discovered evidence would probably produce a
different result”) (internal citations and quotations omitted).
44

See, e.g., Dronsejko, 426 F.3d 658, 672 (“[I]t is Plaintiffs’ burden to establish . . . that the evidence was
unavailable to them.”).
45

7

this burden, Defendants seem to argue that because the Deposition was taken in 2019, after the
Motion for a New Trial was granted, it is “newly available evidence.”46 Defendants explain they
“requested the opportunity to take Lamar Davis’s deposition before the new trial began”
following the Order granting Plaintiff’s Motion for a New Trial, and the attached Deposition
indicates it was taken in December 2019.47 While the date of the 2019 Deposition demonstrates
it was not taken until after the Order granting a new trial, Defendants make no attempt to explain
how the content of the Deposition can be considered “newly discovered” or “previously
unavailable” given the history of this litigation.48
As Judge Campbell noted in her 2015 Order denying Defendants’ motion to strike
Davis’s testimony during the summary judgment stage of this litigation, “Defendants listed Mr.
Davis as a potential witness in their pre-trial disclosures. Indeed, the Defendants have known
about Mr. Davis and the scope of his knowledge since before this litigation began (Mr. Davis
testified at Mr. Gale’s post-termination hearing).”49 Since then, a motion in limine, the post-trial
appeal to the Tenth Circuit, and the second Motion for New Trial have all centered on Davis’s
potential testimony. Given this history, and in the absence of any explanation from the
Defendants, it is unclear how Davis’s 2019 Deposition testimony could be considered “newly
discovered” or “previously unavailable” to Defendants, who have known about the scope of

46

See Motion for Reconsideration (Dkt. 203).

47

Id. at ii; Exhibit B.

48

See generally id. at 1–4 (mentioning only in passing the recency of the 2019 Deposition).

49

See Memorandum Decision and Order (Dkt. 58) at 3, n.8 (emphasis added).

8

Davis’s knowledge for more than a decade and could have taken this deposition at any earlier
point in the litigation.50
Defendants instead attempt to meet their burden by arguing the 2019 Deposition includes
new information concerning Davis’s testimony about Sheriff Merrell’s knowledge, unavailable
at the time the parties were briefing Gale’s second Motion for a New Trial.51 Defendants argue
the 2019 Deposition shows that “[Davis] did not know, for a fact, that Sheriff Merrell knew
about Plaintiff’s campaign activities.”52 Gale argues Davis’s testimony could be offered to “cast
doubt on Merrell’s claim that he did not know about Gale’s campaign activities,” regardless of
whether it demonstrates Merrell’s knowledge for a certainty.53
Defendants’ argument fails to show the 2019 Deposition constitutes new evidence, as a
side-by-side comparison with the 2014 Declaration demonstrates. In Davis’s 2014 Declaration,
he states:
I was aware that Mr. Gale campaigned for Sheriff Merrell’s challenger, Rick
Reynolds, in the 2010 election. Actually, a lot of employees of the Sheriff’s
Office supported Mr. Reynolds discreetly, but Mr. Gale was open and vocal about
his support of him. I knew about Mr. Gale’s support of Mr. Reynolds because Mr.
Gale told me, but this information was common knowledge in the community and
the Sheriff’s Office, and because of that, I am certain that Sheriff Merrell was also
aware of Mr. Gale’s support and campaign activities.54
In the 2019 Deposition, Davis was asked whether he that he had ever seen Gale tell Sherriff
Merrell that he was supporting the other candidate for sheriff, and he answered:

50

See also Oirya v. Brigham Young University, No. 2:16-CV-01121-BSJ, 2020 WL 1692640, at *2–*3 (D. Utah
Apr. 7, 2020) (denying Rule 60(b) motion brought on the basis of “newly discovered evidence” when the witness
identities in question had been revealed on the record to movant in an earlier hearing).
51

Motion for Reconsideration (Dkt. 203) at 1–2.

52

Id. at 2.

53

Opposition (Dkt. 204) at 3.

54

Motion for Reconsideration (Dkt. 203), Exhibit A, ¶ 3.

9

Yeah. I never seen any of that, but you would have to be -- you would have to be
hiding in a cave not to know. Because – well, even Denile had a sign on his front
yard that I know we all drove by on occasion because it’s a small community and
he had a sign on his yard supporting Rick Reynolds to be sheriff . . . I would have
a hard time believing that Merrell didn’t know that he was campaigning against
him. It was pretty obvious. And I never said anything to him about it, but I would
be very surprised if somebody else that was closer to Jeff Merrell didn’t tell him
on a daily basis that Denile was campaigning against him.55
In follow-up questions, Gale answers that he does not know for a fact Sheriff Merrell knew, he
never personally saw Sheriff Merrell drive past Gale’s house, and never saw the Sheriff look at
the website Gale created.56 None of Davis’s responses appear materially different from what he
said in his 2014 Declaration, in which he referenced the “common knowledge in the community”
that Gale was supporting the other candidate, but does not describe a specific occasion in which
he witnessed Sherriff Merrell be made aware of this fact. The answers Davis gave in his 2019
Deposition make that clearer, but a restatement or clarification of a previously-known fact does
not constitute new evidence. Without explaining how the 2019 Deposition is materially different
from the prior evidence, Defendants fail to demonstrate it even constitutes “new” evidence—
much less, as discussed above, that it was new evidence not previously available to Defendants.57
Because Defendants fail to demonstrate how the 2019 Deposition constitutes “newly
available evidence,” or that it is “new” evidence at all, their Motion for Reconsideration based on
newly available evidence is unconvincing and must be denied.

55

Id., Exhibit B, at 54:19–55:11.

56

Id. at 55:12–56:07.

Defendants’ arguments that the new evidence would be “inadmissible at trial” for lacking relevance under Federal
Rule of Evidence 401, see id. at 2–3, and additionally that it would be inadmissible for lack of personal knowledge
under Federal Rule of Evidence 602, see Reply (Dkt. 209) at 2–4, are similarly unavailing. Because Defendants do
not make a showing that the evidence is “newly available,” its admissibility or inadmissibility is irrelevant for
purposes of determining the Motion for Reconsideration.
57

10

b. Defendants Fail to Argue that Denying the Motion for Reconsideration Would
Constitute Manifest Injustice or Clear Error
In their Reply Defendants raise, for the first time, the argument that their Motion for
Reconsideration should additionally be granted because “it would be a clear error and a manifest
injustice to allow a new trial.”58 Because this argument was raised for the first time in the Reply,
the court need not consider it because Gale has had no chance to respond.59 Regardless, the
argument is conclusory and fails to demonstrate that not granting the Motion for
Reconsideration, and holding a new trial, would be a “manifest injustice” or “clear error.”
Defendants state that allowing the new trial to take place “for the sole purpose of allowing Mr.
Davis to testify” “would be a clear error and a manifest injustice,” but essentially tack that
conclusion on to the same arguments about the admissibility of Davis’s testimony made in their
original Motion.60 Defendants do not address the high bar for establishing clear error or manifest
injustice on a motion for reconsideration, which is “difficult [burden]” to meet.61 Therefore, this
argument is similarly unavailing.
c. The Motion for Reconsideration is an “Inappropriate Vehicle” to Reargue Whether
the Exclusion of Davis’s Testimony Violated a Substantial Right
Finally, as discussed above, the Tenth Circuit has cautioned that “a motion for
reconsideration … [is an] inappropriate vehicle[] to reargue an issue previously addressed by the

58

Reply (Dkt. 209) at 2.

See Anderson v. Dep’t of Labor, 422 F.3d 1155, 1174, 1182 n.51 (10th Cir. 2005) (party waived issue not raised
in opening brief).
59

60

Reply (Dkt. 209) at 2, 4, 8.

Grynberg, 490 Fed. App’x at 102; see also United States v. Garibaldi-Bravo, 796 Fed. App’x 538, 540 (10th Cir.
2019) (unpublished) (only upholding a district court’s grant of motion for reconsideration to prevent manifest
injustice only when subsequently available evidence revealed a defendant had been untruthful in about a central
issue).
61

11

court.”62 Because Defendants’ Motion for Reconsideration largely retraces ground covered in
their Opposition to Plaintiff’s Motion for a New Trial, the Motion must be denied.
In their Opposition to Gale’s Motion for a New Trial, Defendants argued that Judge
Campbell’s exclusion of Davis’s testimony on the following points “did not affect Plaintiff’s
substantial rights”: (1) Sheriff Merrell’s knowledge of Gale’s campaigning, (2) other employees’
behavior, (3) retaliation against other employees, or (4) Amber Williams’s credibility.63
Defendants reasoned that Davis’s testimony on these points was “hearsay,” “not dispositive,”
duplicative of other trial testimony, or not relevant given the policy Davis allegedly violated
compared with other employees.64 Defendants attempt to relitigate these issues using the 2019
Deposition, rearguing in the Motion for Reconsideration that Davis’s testimony (1) concerning
Sherriff Merrell would not be relevant or admissible, (2) concerning other employees’
misconduct was “already ruled . . . not to be admissible,” (3) concerning Ms. Williams’s
credibility “is unrelated [to Gale’s violation]” and (4) concerning consistency of discipline to
other employees is also “unrelated.”65 In addition to reattempting the argument that Davis’s
testimony would be inadmissible, Defendant’s argument that Davis’s testimony concerning the
misconduct of other employees was ruled inadmissible at the first trial relies on facts—including
the first trial’s Motion in Limine concerning this testimony—that were obviously “available at
the time of the [Second Motion for New Trial].”66 As discussed, motions for reconsideration

62

Servants of Paraclete, 204 F.3d at 1012.

63

Memorandum in Opposition (Dkt. 151) 15–17.

64

See id.

65

Motion for Reconsideration at 2–4.

66

Servants of Paraclete, 204 F.3d at 1012.

12

based on new evidence cannot rely on facts and evidence available to a party at the time of the
original motion.67
Because Defendants “merely advance[] new arguments . . . available at the time of the
original motion,”68 they do not support a motion for reconsideration. Accordingly, the court
denies Defendants’ Motion for Reconsideration.
CONCLUSION
For the reasons stated above, Defendants’ Motion for Reconsideration is DENIED.69
So ORDERED this 5th day of October, 2021.

BY THE COURT:

________________________________________
ROBERT J. SHELBY
United States Chief District Judge

67

Id.

68

Id.

69

Motion for Reconsideration (Dkt. 203).

13