United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
September 28, 2018, the undersigned granted
Defendants' motion for summary judgment, (doc. 43),
and dismissed this 42 U.S.C. § 1983 action with
prejudice. (Docs. 66 & 67). Plaintiff Marcus Underwood
(“Underwood” or “Plaintiff”) has
moved to alter or amend that judgment pursuant to
Fed.R.Civ.P. 59(e). (Doc. 68). Defendants oppose that motion.
(Doc. 70). Underwood has also moved for leave to file
supplemental authority in support of his Rule 59 motion,
(doc. 71), and Defendants have submitted a response to that
motion, (doc. 72). Underwood's motion for leave is
GRANTED to the extent that the undersigned
will consider the arguments made in the motion and the
attached authority, but, for the reasons stated more fully
below, Underwood's Rule 59(e) motion is
DENIED. However, a new memorandum opinion
will be substituted for the previous opinion
59(e) permits a party to move to alter or amend a judgment.
Fed.R.Civ.P. 59(e). “Reconsidering the merits of a
judgment, absent a manifest error of law or fact, is not the
purpose of Rule 59.” Jacobs v. Tempur-Pedic
Int'l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010).
To that end, “the only grounds for granting a Rule 59
motion are newly-discovered evidence or manifest errors of
law or fact.” Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007) (quoting In re Kellogg, 197
F.3d 1116, 1119 (11th Cir.1999)) (internal alterations
omitted). For the purposes of the Rule, a manifest error of
law is “the wholesale disregard, misapplication, or
failure to recognize controlling precedent.” Benton
v. Burke, No. CV-11-S-493-NE, 2012 WL 1746122, at *1
(N.D. Ala. May 16, 2012) (quoting Oto v. Metropolitan
Life Insurance Co., 224 F.3d 601, 606 (7th Cir. 2000)).
“A Rule 59(e) motion cannot be used to relitigate old
matters, raise argument or present evidence that could have
been raised prior to the entry of judgment.”
Id. (quoting Michael Linet, Inc. v. Village of
Wellington, Fla., 408 F.3d 757, 763 (11th Cir.2005))
(internal alterations omitted).
Rule 59(e) motion challenges the undersigned's conclusion
that Officer Partridge and Officer Asarisi are entitled to
qualified immunity. (See doc. 68).
this is not actually the error Underwood states entitles him
to relief under Rule 59(e), the undersigned starts with
Underwood's contention the court failed to construe the
evidence favorably to him and, instead, resolved factual
disputes in Defendants' favor. (Doc. 69 at 2-3). For the
most part, the undersigned does not need to delve into this
issue because the memorandum opinion accounts for the reasons
why Underwood's assertions are misplaced. The only
specific piece of evidence Underwood identifies that the
memorandum opinion did not account for was an
excerpt from the deposition of Elizabeth “Lee”
Harrington (“Harrington”). The undersigned noted
in the memorandum opinion: “Underwood states Harrington
testified Underwood's car did not accelerate until after
the officers began shooting at it. (Doc. 58 at 13, ¶
13-14). None of the testimony Underwood references supports
this assertion.” (Doc. 66 at 12 n.12). The memorandum
opinion then identifies the portions of Harrington's
testimony that Underwood cited. (See id.) (citing
doc. 58 at 13, ¶¶ 13-14 (which, in turn, cites doc.
37-3 at 60:1-23, 62:14-23)). Underwood's instant motion
cites a different portion of Harrington's testimony to
rebut the memorandum opinion's alleged conclusion that
“none of Harrington's testimony supports an
assertion that Underwood's car did not accelerate until
after the officers began shooting at it.” (Doc. 68 at
3-4, n.2). In that portion, the following exchange occurred:
Q. And that's because you first observed the car when you
A. When I was outside, I observed the car going around the
policeman. I don't know where it came from. I didn't
Q. And it was going by the tall, thin police officer?
Q. And do you know where the other officer was at that time?
Q. Did you observe the car begin to move more quickly as it
went past the tall, thin officer, before the ...