United States District Court, S.D. Georgia, Augusta Division
ROGER J. BELL, Plaintiff,
JACK LNU and CHRIS LNU, Defendants.
RANDAL HALL, DISTRICT JUDGE.
the Court is Plaintiff's motion for reconsideration.
(Doc. 17.) Plaintiff filed his complaint on April 16, 2018.
(Doc. 1.) On April 20, 2018, Magistrate Judge Brian K. Epps
ordered Plaintiff to amend his complaint. (Doc. 4.) Failing
to do so within the allotted time, Magistrate Judge Epps
reported and recommended that the case be dismissed. (R.
& R. I, Doc. 5.) Thereafter, Plaintiff objected to the
report and recommendation (Doc. 7), Magistrate Judge Epps,
again, ordered Plaintiff to amend his complaint (Doc. 8),
and, on May 29, 2019, Plaintiff filed an amended complaint
amended complaint was still insufficient, containing
deficiencies such as naming individuals as Defendants instead
of the employer, failing to provide any factual detail in
support of his check-the-box claims, and failing to make a
demand for relief. On June 12, 2018, Magistrate Judge Epps
reported and recommended that the amended complaint be
dismissed without prejudice for: (1) failing to follow a
court order and (2) failing to state a claim upon which
relief could be granted. (R. & R. II, Doc. 11, at 3-6.)
Plaintiff filed an objection thereto presenting a narrative
of certain interactions between Plaintiff and Defendants
occurring before his termination. (Doc. 14.)
was given multiple opportunities to cure his pleading
deficiencies, yet Plaintiff failed to cure. Accordingly, on
July 2, 2018, the Court overruled the objection and adopted
the report and recommendation dismissing the case without
prejudice. (Order Adopting R. & R. II, Doc. 15.) On July
5, 2018, Plaintiff filed this one-paragraph motion for
reconsideration stating that he possesses a recording on his
phone where a prior coworker told him "what Chris was
saying to Jack about firing me." (Mot. for
Reconsideration, Doc. 17.)
general, "[r]econsideration of a previous order is an
extraordinary remedy, to be employed sparingly."
Armbuster v. Rosenbloom, No. 1:15-cv-114, 2016 WL
1441467, at *1 (S.D. Ga. Apr. 11, 2016) (internal quotation
marks and citation omitted); Spellman v. Haley, No.
97-T-640-N, 2004 WL 866837, at *2 (M.D. Ala. Feb. 22, 2002)
("litigants should not use motions to reconsider as a
knee-jerk reaction to an adverse ruling"). Because it is
not an appeal, "it is improper on a motion for
reconsideration to ask the Court to rethink what the Court
has already thought through - rightly or wrongly."
Armbuster, 2016 WL 1441467, at *1 (internal
quotation marks and citation omitted). It is well established
that "additional facts and arguments that should have
been raised in the first instance are not appropriate grounds
for a motion for reconsideration." Gougler v. Sirius
Prods., Inc., 370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005)
(citation omitted); see also Am. Home Assurance Co. v.
Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239
(11th Cir. 1985) (cautioning against use of motion to
reconsider to afford a litigant "two bites at the
apple"); Rossi v. Troy State Univ., 330
F.Supp.2d 1240, 1249-50 (M.D. Ala. 2002) (denying motion to
reconsider where plaintiff failed to submit evidence prior to
entry of order and failed to show good cause for the
omission) . Furthermore, "the moving party must set
forth facts or law of a strongly convincing nature to induce
the court to reverse its prior decision." Burger
King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d
1366, 1369 (S.D. Fla. 2002). And, ultimately, "the
decision to grant a motion for reconsideration is committed
to the sound discretion of the district judge."
Townsend v. Gray, 505 Fed.Appx. 916, 917 (11th Cir.
2013) (internal quotation marks and citation omitted).
may reconsider an order under either Federal Rule of Civil
Procedure 59(e) or 60. Petitioner fails to note under which
rule he brings this motion for reconsideration; thus, it is
up to the Court to determine. Simply put, "if a motion
is filed within twenty-eight days of judgment, the motion
should be analyzed under Rule 59." Brown v.
Spells, No. 7:ll-cv-91 (HL), 2011 WL 4543905, at *1
(M.D. Ga. Sept. 30, 2011); accord Mahone v. Ray, 326
F.3d 1176, 1177 n.l (11th Cir. 2003). Plaintiff filed his
motion to reconsider three days following the challenged
order; thus, the Court analyzes Plaintiff's motion under
Rule 59(e). Reconsideration under Rule 59(e) is justified
only when there is: "(1) an intervening change in
controlling law; (2) the availability of new evidence; or (3)
the need to correct clear error or prevent manifest
injustice." Schiefer v. United States, No.
CV206-206, 2007 WL 2071264, at *2 (S.D. Ga. July 19, 2007);
see also Arthur v. King, 500 F.3d 1335, 1343 (11th
Cir. 2007) (Rule 59(e) "cannot be used to relitigate old
matters, raise argument or present evidence that could have
been raised prior to the entry of judgment." (citation
Plaintiff states only that reconsideration is appropriate
because of the recording on his phone. Thus, the only
potential reason for reconsideration is based on the
availability of new evidence. New evidence warrants
reconsideration only when it was previously unavailable.
Durden v. State Farm Fire & Cas. Co., No.
1:15-cv-3971-WSD, 2017 WL 3723118, at *6 (Aug. 29, 2017);
see also Mays v. U.S. Postal Serv., 122 F.3d 43, 46
(11th Cir.1997) ("[P]arties cannot introduce new
evidence post-judgment unless they show that the evidence was
does not state this recording was previously unavailable;
thus, it cannot be considered new evidence. Furthermore, this
information is unrelated to the reasons the Court dismissed
Plaintiff's case. Plaintiff's case was dismissed for
failing to cure multiple pleading deficiencies, as outlined
above. Plaintiff's motion to reconsider offers no new
evidence, nor evidence that would require the Court to
reevaluate its previous decision. Thus, reconsideration is
inappropriate, and the Court DENIES
Plaintiff's motion to reconsider. (Doc. 17.)
 The same day Plaintiff filed the
objection, he filed another, similarly deficient amended