United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
18, 2016, Plaintiff Geta Barr (“Ms. Barr”) filed
her Complaint in the Circuit Court of Jefferson County,
Alabama, alleging sixteen claims against several Defendants
stemming from the issues surrounding her barber shops.
(See Doc. 1-1). The case was removed to the Northern
District of Alabama on August 17, 2016. (Doc. 1). On May 15,
2018, the Court granted in part a motion for summary
judgment, dismissing all the remaining federal claims in the
process. (Docs. 76, 77). After all federal claims were
dismissed, the Court exercised its discretion to remand the
case to state court, Ms. Barr's original choice of forum.
(Docs. 76, 77, 78). Unhappy with the result, Ms. Barr filed
the instant Motion To Vacate Summary Judgment (the
“Motion”) on June 12, 2018. (Doc. 79). At this
early juncture, the Defendants have not briefed the Motion.
They do not need to do so as Ms. Barr has not met the Rule
59(e) standard. The Motion is due to be
first task for the Court is to determine whether Ms. Barr is
seeking relief under Rule 60(b) or Rule 59(e). In what is
turning out to be a recurrent theme, she expects the Court to
infer this on its own. The Court is reading the Motion as
being brought under Rule 59(e) because it appears what Ms.
Barr really wants is for the Court to vacate its judgment and
proceed to a trial. (See Doc. 79 at
Rule 59(e) provides a means for a Court “to alter or
amend a judgment.” See Fed. R. Civ. P. 59(e)
(capitalization and emphasis omitted).
grant or denial of a motion to reconsider is left to the
discretion of the district court. See Region 8 Forest
Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800,
806 (11th Cir. 1993) (holding that abuse of discretion
standard applies “to a district court's grant of a
motion for reconsideration of a non-final judgment”);
Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th
Cir. 2000) (“We review the district court's . . .
denial of a motion to reconsider summary judgment only for
abuse of discretion.” (citing Cavaliere v. Allstate
Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993))).
Nonetheless, in the interests of finality and conservation of
scarce judicial resources, reconsideration of an order is an
extraordinary remedy and is employed sparingly. See,
e.g., United States v. Bailey, 288 F.Supp.2d 1261, 1267
(M.D. Fla. 2003); Pennsylvania Ins. Guar. Ass'n v.
Trabosh, 812 F.Supp. 522, 524 (E.D. Pa. 1992);
Spellman v. Haley, No. 97-T-640-N, 2004 WL 866837,
at *2 (M.D. Ala. Feb. 22, 2002) (“[L]itigants should
not use motions to reconsider as a knee-jerk reaction to an
adverse ruling.” (citing Richards v. United
States, 67 F.Supp.2d 1321, 1322 (M.D. Ala. 1999))).
Indeed, as a general rule, “[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).
purpose of a Rule 59(e) motion is not to raise an argument
that was previously available, but not pressed.”
Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998).
Barr argues that the Court's ruling on May 15 conflicts
with established law. (See Doc. 79 at 3). Ms. Barr
then goes on for about twelve pages to make an argument that
she could have made in her initial response to summary
judgment - i.e. applying McKinney v. Pate
would be inappropriate in these circumstances. (See
Id. at 3-12). The problem is that Ms. Barr did not
explain to the Court in that response why applying
McKinney would be inappropriate. (See Doc.
63 at 15-20). In fact, Ms. Barr barely cited
McKinney at all in her whole 38 page brief. (See
Id. at 1-38). And neither of those citations related to
her current argument that McKinney does not apply.
(See Id. at 15, 19).
Ms. Barr should not be surprised that the Court applied
McKinney. This is not the first time in this
litigation that McKinney has been cited in
dismissing one of her claims. (See Doc. 35 at
15-22); Barr v. Jefferson Cty. Barber Comm'n,
250 F.Supp.3d 1245, 1256-57 (N.D. Ala. 2017). Ms. Barr had
ample time to prepare her response to a predictable argument.
Barr also cites numerous cases in her Motion that were not
cited in the original summary judgment
response. In her Motion, Ms. Barr cites Quik
Cash Pawn & Jewelry, Inc. v. Sheriff of Broward
City. (See Doc. 79 at 4) (citing 279 F.3d
1316). That case is nowhere to be found in Ms. Barr's
summary judgment response. (See generally Doc. 63).
In her Motion, Ms. Barr cites United States v. Land.
(See Doc. 79 at 8) (citing 163 F.3d 1295). That case
also was not mentioned in her summary judgment response.
(See generally Doc. 63). The same is true of Ms.
Barr's citations to G.W. v. Dale County Dep't of
Human Resources, City of Birmingham v. Southern Bell
Tel. & Tel. Co., State v. Albritton, Ex
parte Alabama Textile Prods. Corp., Flatford v. City
of Monroe, Plumer v. State of Md., Matthias
v. Bingley, Vitek v. Jones, and Arnett v.
Kennedy. (See Doc. 79 at 8-14). None of those
nine cases are cited in Ms. Barr's response to summary
judgment. (See Doc. 63).
is more. Ms. Barr argues that the Court “failed to
consider the United States Supreme Court's holding
pronounced in Zinermon v. Burch” when she
never argued the applicability of the Burch decision
in her discussion of federal procedural due process.
(See Doc. 79 at 11) (emphasis changed);
(See Doc. 63 at 15-20). In fact, the Burch
decision does not appear a single time in her entire brief.
(See Id. at 1-38).
Barr argues that the memorandum opinion runs afoul of
U.S. v. James Daniel Good Real Prop. and Mathews
v. Eldridge. (See Doc. 79 at 3). Unlike the
litany of cases Ms. Barr has now discovered and wants to
argue for the first time, these two cases do appear in her
summary judgment opposition. (See Doc. 63 at 19,
24). However, unlike the stars Ms. Barr now wants to argue
them as, originally she relegated them to cameo roles.
(See id.). Ms. Barr first cited James
Daniel to discuss how due process rights relate to a
home, even though this is a case about a business.
(See Doc. 63 at 19). Her second citation to
James Daniel is a mere “cf.”
cite, standing for not much more than the proposition that
the government must follow the Due Process Clause. (See
Id. at 24). Mathews is relegated to another
case's parenthetical in the first instance (discussing
homes again) and supporting the idea that the defendants do
not argue it (though neither does Ms. Barr) in the second.
(See Doc. 63 at 19, 24).
“a passing reference to an issue in a brief [is]
insufficient to properly raise that issue.” See
Transamerica Leasing, Inc. v. Inst. of London
Underwriters, 430 F.3d 1326, 1331 n.4 (11th Cir. 2005)
(citing Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989)). “A party who
aspires to oppose a summary judgment motion must spell out
his arguments squarely and distinctly, or else
forever hold his peace.” Higgins v. New Balance
Ath. Shoe Inc., 194 F.3d 252, 260 (1st Cir. 1999)
(citing sources) (emphasis added). Instead of meandering
through a discussion about private homes (see Doc.
63 at 19-20) and employment law (see Id. at 21), Ms.
Barr could have been making the arguments and applying the
factors she now raises in her Motion (see Doc. 79 at
3-15). The Court need not detail every argument raised in her
Motion compared to what she submitted to the ...