United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the court on Plaintiff's motion for
reconsideration. (Doc. 51). In his motion, Plaintiff Eric
Brown asks the court to reconsider its granting
Defendant's motion for summary judgment and entering
judgment against Mr. Brown on his race discrimination claim.
Coincidentally, almost simultaneously with Mr. Brown filing
his motion, this court sua sponte withdrew its prior
Memorandum Opinion and Order for reasons unrelated to Mr.
Brown's motion, technically rendering that motion moot.
The next day the court issued an amended Memorandum Opinion
and Order, consistent with its prior ruling to enter judgment
for Defendant Pettway and against Plaintiff Brown. Mr.
Brown's motion does not address any of the reasons this
court sua sponte withdrew its prior Order and
instead relies on arguments that apply equally to the
court's original Memorandum Opinion, (doc. 49), and its
amended Memorandum Opinion, (doc. 53). So, for judicial
efficiency, this court treats Mr. Brown's motion as
directed toward the amended Memorandum Opinion and Order. For
the reasons stated below, this court DENIES Mr. Brown's
motion and declines to reconsider its prior ruling.
to grant a motion to reconsider under Federal Rule of Civil
Procedure 59(e) or 60(b) is within the discretion of the
trial court. See Smith v. Casey, 741 F.3d 1236, 1241
(11th Cir. 2014). As Mr. Brown correctly points out,
“reconsideration of an order is an extraordinary remedy
and is employed sparingly.” Rueter v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 440 F.Supp.2d
1256, 1267 (N.D. Ala. 2006). The moving party “must
demonstrate why the court should reconsider its prior
decision and ‘set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision.'” Fidelity & Deposit of Md. v.
Am. Consertech, Inc., No. 06-03338-CG-M, 2008 WL
4080270, at *1 (S.D. Ala. Aug. 28, 2008) (quoting Cover
v. Wal-Mart Stores, Inc., 148 F.R.D. 294 (M.D. Fla.
grounds justify reconsideration of an order: when a party
submits evidence of (1) “an intervening change in
controlling law, ” (2) “the availability of new
evidence, ” or (3) “the need to correct clear
error or manifest injustice.” Wallace v.
Holder, 846 F.Supp.2d 1245, 1248 (N.D. Ala. 2012)
(quoting Summit Med. Ctr. of Ala., Inc. v. Riley,
284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003)). “[A] motion
to reconsider should not be used by the parties to set forth
new theories of law.” Mays v. U.S. Postal
Serv., 122 F.3d 43, 46 (11th Cir. 1997). And
“[a]dditional facts and arguments that should have been
raised in the first instance are not appropriate grounds for
a motion for reconsideration.” Rossi v. Troy State
Univ., 330 F.Supp.2d 1240, 1249 (M.D. Ala. 2002).
Brown's motion does not specify on which of the three
grounds for reconsideration it relies. But the motion does
not use any previously unavailable evidence and does not
identify any intervening change in controlling
So the court assumes the motion intends to argue that this
court needs to correct clear error and prevent manifest
end, Mr. Brown asserts that this court entered judgment
against him because he failed to allege that he suffered any
adverse employment action and because he failed to identify a
similarly situated comparator. (Doc. 51 at 3). But this court
did conclude that a jury could find that
Mr. Brown suffered adverse employment action. (Doc. 49 at 10;
Doc. 53 at 10) (“Because a jury could find that the
administrative restrictions Defendant placed on Mr.
Brown constituted a material adverse change to the privileges
of Mr. Brown's employment as a Deputy Sheriff, the court
declines to rule on summary judgment that Mr. Brown failed to
establish that he suffered an adverse employment action
because of his administrative restrictions.”) (emphasis
this court narrowed the scope of Mr. Brown's claim by
concluding that his involuntary reassignment to the
Corrections Division was not adverse employment action. (Doc.
49 at 9-10; Doc. 53 at 9-10). Mr. Brown relies on the
standard for adverse employment action in the retaliation
context to argue that this conclusion was in error.
(Doc. 51 at 3-4) (citing Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006)). But Mr. Brown
brought claims for racial discrimination, not retaliation.
One of the cases he cites in his motion illustrates why that
distinction is so important to the present matter: “We
next conclude that the shift change cannot support a
Title VII or § 1983 discrimination claim but
can constitute an adverse employment action for purposes
of Smith's retaliation claims . . . .” Smith v.
Greensboro, 647 Fed.Appx. 976, 981 (11th Cir. 2016)
(emphasis added). The court declines to reconsider its prior
ruling and reanalyze this case under the incorrect legal
standard, as Mr. Brown requests.
Brown next argues this court erred in rejecting several of
his proffered comparators as not being similarly situated in
all material respects. But his motion does nothing more than
rehash old arguments or present arguments that he could have
and should have raised in his response to Defendant's
motion. Mr. Brown has failed to convince this court that it
committed clear error and that allowing him a second bite at
the proverbial apple is the only way to prevent manifest
injustice. See Hammonds v. DeKalb County, Ala., No.
4:16-BE-1558-M, 2017 WL 1407461, at *1 (N.D. Ala. Apr. 20,
court DENIES Mr. Brown's motion for reconsideration.
 Although Plaintiff did not identify
any intervening change in controlling law, a change
has occurred. See Lewis v. Union City, Ga.,
No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019) (en
banc). But the court already addressed that issue by sua
sponte withdrawing and amending its prior Memorandum
Opinion and Order. (Docs. 53 and 54). The court completed its
own review in light of Lewis and concluded that ...