United States District Court, S.D. Alabama, Southern Division
January 13, 2015
NELSON BUMPERS, et al., Plaintiffs,
AUSTAL, USA, L.L.C., Defendant.
KRISTI K. DuBOSE, District Judge.
This matter is before the Court on "Plaintiffs' Motion to Reconsider and/or Objections to the Court's Sua Sponte Order of Bifurcation" (Doc. 855) and Defendant's Response (Doc. 857).
I. Standard of Review
As to the motion to reconsider, the Court construes Plaintiffs' motion to reconsider the Court's Order (Doc. 851) as filed pursuant to Rule 60(b)(1) for mistake of law and/or Rule 60(b)(6) for any reason that justifies relief. The decision to grant or deny a motion to reconsider is left to the discretion of the trial court. Chapman v. AI Transp., 229 F.3d 1012, 1023-1024 (11th Cir. 2000) (en banc). "In the interest of finality and conservation of scarce judicial resources, reconsideration of an order is an extraordinary remedy and is employed sparingly." Gougler v. Sirius Prod., Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005) (citation omitted). Generally, "[a] motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice." Summit Med. Ctr. of Ala., Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003). See also Douglas Asphalt Co., v. QORE, Inc., 657 F.3d 1146, 1151-1152 (11th Cir. 2011). However, "[m]otions for reconsideration should not be used to raise legal arguments which could and should have been made before the judgment was issued" Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th Cir. 2001) (citations omitted), and "cannot be brought solely to relitigate issues already raised [, ]" Harris v. Corrections Corp. of America, 2011 WL 2672553, *1 (11th Cir. Jul. 22, 2011). Further, "a motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind.'" King v. Farris, 357 Fed.Appx. 223, 225 (11th Cir. 2009).
On August 12, 2014, this matter was set for a November 18, 2014 Final Pretrial Conference, trial in December 2014, and December 3, 2014 jury selection. (Doc. 827). At the November 18, 2014 Final Pretrial Conference, the Court notified the parties that the already scheduled December 2014 trial of the seven (7) plaintiffs, would be bifurcated into two (2) trials as follows: Trial One (Bumpers, Reed, Williams) and Trial Two (Hollis, Laffiette, Law and Pettibone). Plaintiffs' counsel objected, both to the December 2014 trial setting and to bifurcation, and orally moved for a continuance of the Final Pretrial Conference and Trial. Upon consideration, but reluctantly because of the untimeliness of the motion,  the Court granted Plaintiffs' counsel's motion to continue but kept the trials bifurcated. (Doc. 851). The bifurcated trials were then scheduled for the March 2015 civil trial term. (Id.) On December 17, 2014, Plaintiffs filed objections to bifurcation and a motion to reconsider the Court's ruling. (Doc. 855). Defendant opposes Plaintiffs' motion. (Doc. 857).
In their motion, Plaintiffs do not raise any arguments based on, or present any evidence of, an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice. Rather, Plaintiffs contend that bifurcation of the trial of the seven (7) plaintiffs violates Fed.R.Civ.P. Rule 42 and "severely harms" plaintiffs.
Specifically, citing Rule 42 as grounds ("[i]f actions before the court involve a common question of law or fact, the court may :... join for.... trial any or all matters at issue in the actions"), Plaintiffs claim that bifurcation contradicts the rule and "severely harms" them due to "significant, if not complete, overlap of witnesses, documentary evidence and legal issues." Fed.R.Civ.P. Rule 42 (emphasis added)). Plaintiffs assert that they all have testimony "relevant to all of the other plaintiffs claims and all trial plaintiffs, as well as most other witnesses, [and] will have to testify at both trials regardless of the bifurcation." (Doc. 855 at 2-3).
As explained and emphasized to the parties throughout the course of this litigation, which is not a class action, the Court has made sincere efforts to avoid the combining of each plaintiffs' alleged discriminatory experiences into a potentially overwhelming and/or prejudicial "me too" trial. According to Eleventh Circuit precedent, each plaintiff's discrimination experiences stand on their own and cannot be lumped together with other plaintiffs' experiences, unless a plaintiff was made aware of the other plaintiffs' experiences while employed. This is at the heart of the need for bifurcation now in this case, just as it has been previously. On appeal, the Eleventh Circuit acknowledged the correctness of the undersigned's rulings with regard to "me too" evidence.
Additionally, the Court finds perplexing Plaintiffs' position. During the final pretrial conference, Plaintiffs' counsel stated that all seven (7) plaintiffs were subject to the same Austal policies. Plaintiffs further assert in the present motion that all of their claims are "identical" and that they "all worked in the same work environment during overlapping time periods" and "the plaintiffs were subject to the same employment policies." (Doc. 865 at 4). This appears to be factually incorrect. As explained during the conference (and in detail in the summary judgment orders on remand, see, e.g., Doc. 828 at 3-6, 10-17), the Plaintiffs were only subject to the Austal policies in effect during the time each of them was employed, and they were not all employed at the same time. Indeed, this Court went to great lengths to explain such in the summary judgment orders on remand for these plaintiffs, to clarify each plaintiff's status vis-à-vis the Faragher/Ellerth defense.
Specifically, Plaintiffs Bumpers, Reed, and Williams were not subject to the November 2007 Austal policy, which effected a change to the reporting procedure and for the first time made reference to HR and added the condition that two (2) steps had to be completed before contacting HR. In contrast, Plaintiffs Hollis, Laffiette, Law, and Pettibone were subject to the November 2007 policy and so had different reporting requirements/procedures. This was the primary reason the court bifurcated the trials.
Moreover, Rule 42(a) does not require consolidation, but rather provides such as an option within the Court's discretion. And as stated supra, consolidation is tied to the existence of common questions of law or fact. Here, there are different facts that prompt different applications of the legal Faragher/Ellerth claims - insofar as such are explicitly tied to a particular policy in effect during each plaintiff's employment. Also, Plaintiffs fail to reference the other half of Rule 42, Rule 42(b), which provides for separate trials of one or more separate issues and/or claims "[f]or convenience, to avoid prejudice, or to expedite and economize" Fed.R.Civ.Proc. 42(b). It is more convenient for the Court to bifurcate the plaintiffs into separate trials rather than litigating all seven (7) at once. The potential for prejudice is reduced with bifurcation, as one plaintiff's contentions about his/her reporting requirements as to a particular Austal policy, will not cloud (or be confused with) another plaintiff's contentions about his/her reporting requirements when/if that particular policy was inapplicable. Bifurcation will also limit confusion about the applicability of the specific Austal policies.
Thus, the Court finds no basis to reconsider its ruling. The issue of bifurcation has been dealt with throughout this case and the parties have had the opportunity to address same. Additionally, this case has been appealed, and while the Eleventh Circuit did not speak directly to the issue of bifurcation, it ruled that "an employee alleging a hostile work environment cannot complain about conduct of which he was oblivious for the purpose of proving that his work environment was objective hostile." (Doc. 821 at 3 and 13-14). Moreover, the Eleventh Circuit did note that the trials had been bifurcated, relating to an appeal concerning the limitation of "me too" evidence during trial, and found that this Court properly limited the "me too" evidence at trial. (Doc. 822 at 4). In sum, despite Plaintiffs' contentions, the trials are not "carbon copies, " and it will be the responsibility of counsel to appropriately tailor the testimony and evidence for each trial accordingly.
Accordingly, it is ORDERED that Plaintiffs' Motion to Reconsider and/or Objections to the Court's Sua Sponte Order of Bifurcation" (Doc. 855) is DENIED.
DONE and ORDERED.