United States District Court, S.D. Georgia, Augusta Division
BRO T. HESED-EL, Plaintiff,
COURTNEY MCCORD, in Her Individual and Official Capacities; VERA L. BUTLER, in Her Individual and Official Capacities; and City of Augusta-Richmond County, Defendants.
RANDAL HALL, UNITED STATES DISTRICT COURT CHIEF JUDGE
the Court are the following motions: (1) Plaintiff's
motion pursuant to Federal Rule of Civil Procedure 60 (Doc.
114); (2) Plaintiff's motion pursuant to Federal Rule of
Civil Procedure 52 (Doc. 115); (3) Plaintiff's motion for
judicial notice (Doc. 117); and (4) Plaintiff's motion to
proceed on appeal in forma pauperis
("IFP") (Doc. 119). For the reasons set forth
below, each motion is DENIED.
is a serial filer in this Court. See Georgia v.
Hesed-El, No. CV 118-037, 2018 WL 1404893, at *1, *2
(S.D. Ga. Mar. 28, 2018) (identifying eight cases filed by
Plaintiff over two years); see also Hesed-El v. Aldridge
Pite, LLP, et al., CV 119-162, United States District
Court for the Southern District of Georgia, Augusta Division
(transferred); Hesed-El v. Lown, et al., CV 118-200,
United States District Court for the Southern District of
Georgia, Augusta Division; Hesed-El v. Poff, CV
118-079, United States District Court for the Southern
District of Georgia, Augusta Division. In the present action,
Plaintiff alleges he was illegally arrested without probable
cause and authority. (Second Am. Compl., Doc. 84-1,
¶¶ 24, 39.) Defendants moved to dismiss Plaintiff s
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). (Defs.' Mot. to Dismiss, Doc. 88.) On March 29,
2019, the Court determined Plaintiff failed to state a claim
upon which relief could be granted and dismissed the action.
(Mar. 29, 2019 Order, Doc. 107, at 5-17, 22.)
the Court's March 29, 2019 Order, Plaintiff filed the
motions before the Court. The Court addresses each motion in
Motion for Reconsideration
filed his motion for reconsideration pursuant to Federal Rule
of Civil Procedure 60(b). A motion for reconsideration
following a final judgment "falls within the ambit of
either Rule 59(e) (motion to alter or amend a judgment) or
Rule 60(b) (motion for relief from judgment or order)."
Region 8 Forest Serv. Timber Purchasers Council v.
Alcock, 993 F.2d 800, 805-06 n.5 (11th Cir. 1993).
Generally, when a motion for reconsideration is filed within
twenty-eight days of the final judgment, the motion is
treated as a motion pursuant to Federal Rule of Civil
Procedure 59(e). See Mahone v. Ray, 326 F.3d 1176,
1177 n.1 (11th Cir. 2003) (analyzing Rule 59 under former
ten-day deadline). Because Plaintiff is proceeding pro
se, the Court will construe Plaintiff's motion as a
motion pursuant to Rule 59(e) where possible.
of an earlier order is an extraordinary remedy, which should
be permitted sparingly. Ceja v. United States, No.
CV 115-018, 2017 WL 3401459, at *1 (S.D. Ga. Aug. 8, 2017)
(citing Williams v. Cruise Ships Catering & Serv.
Int'l, N.V., 320 F.Supp.2d 1347, 1358 (S.D. Fla.
2004)). Although not enumerated in the rule, "the only
grounds for granting a Rule 59[(e)] motion are
newly-discovered evidence or manifest errors of law or
fact." Arthur v. King, 500 F.3d 1335, 1343
(11th Cir. 2007) (per curiam). Under Federal Rule of Civil
Procedure 60(b), a court may relieve a party from a final
judgment, order, or proceeding for (1) mistake or neglect,
(2) newly discovered evidence, (3) fraud, (4) a void
judgment, (5) a satisfied judgment, or (6) any other reason
motion for reconsideration should not be used "to
relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of
judgment." Wilchombe v. TeeVee Toons, Inc., 555
F.3d 949, 957 (11th Cir. 2009) (citation omitted) . Whether
to grant a motion for reconsideration is within the sound
discretion of the district court. Ebanks v. Samsung
Telecomm. Am., LLP, 667 Fed.Appx. 740, 741 (11th Cir.
2016) (per curiam) (citing Lamonica v. Safe Hurricane
Shutters, Inc., 711 F.3d 1299, 1317-18 (11th Cir. 2013)
(Rule 59(e)); Am. Bankers Ins. Co. v. Nw. Nat'l Ins.
Co., 198 F.3d 1332, 1338 (11th Cir. 1999) (Rule 60(b))).
the Court analyzes Plaintiff's request that the Court
revise its judgment because of newly discovered evidence
under Rule 59(e). To succeed on a Rule 59(e) motion claiming
newly discovered evidence, "the movant must show either
that the evidence is newly discovered or, if the evidence was
available at the time of the decision being challenged, that
[the movant] made a diligent yet unsuccessful effort to
discover the evidence." Chery v. Bowman, 901
F.2d 1053, 1057 n.6 (11th Cir. 1990). In support of his
motion, Plaintiff filed an "Affidavit of New
Evidence" (Doc. 112) and "Addendum to Affidavit of
New Evidence" (Doc. 122). The affidavit includes
information that is not "evidence," evidence
already in the record, new evidence that is entirely
irrelevant to this lawsuit, and evidence that was available
at the time of the judgment.
Plaintiff appears to argue the Court committed a manifest
error of law or fact. In asserting the Court should correct a
manifest error of fact on a dismissal for failure to state a
claim, Plaintiff effectively asks the Court to revisit the
complaint's allegations. See United States ex rel.
Heesch v. Diagnostic Physicians Grp., P.C., No.
11-0364-KD-B, 2014 WL 1948326, at *1-2 (S.D. Ala. May 15,
2014). The Court previously analyzed the complaint when
deciding Defendants' motion to dismiss and concluded
Plaintiff failed to state a claim. Nothing has changed with the
complaint since that time. For these reasons, the Court refrains
from altering or amending its dismissal pursuant to Federal
Rule of Civil Procedure 59(e).
further asserts that relief is necessary under provisions
only available under the stricter standard of Rule 60(b) .