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Barr v. Johnson

United States District Court, N.D. Alabama, Southern Division

June 21, 2018

GETA BARR, Plaintiff,



         I. Introduction

         On July 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 DENIED.

         II. Standard

         The 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 16).[1] 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).

         The 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).

         “The 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).

         III. Analysis

         Ms. 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).

         Further, 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.

         Ms. Barr also cites numerous cases in her Motion that were not cited in the original summary judgment response.[2] 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).

         There 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).

         Ms. 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).

         Even “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 ...

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