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Hesed-El v. McCord

United States District Court, S.D. Georgia, Augusta Division

October 10, 2019

BRO T. HESED-EL, Plaintiff,
v.
COURTNEY MCCORD, in Her Individual and Official Capacities; VERA L. BUTLER, in Her Individual and Official Capacities; and City of Augusta-Richmond County, Defendants.

          ORDER

          J. RANDAL HALL, UNITED STATES DISTRICT COURT CHIEF JUDGE

         Before 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.

         I. BACKGROUND

         Plaintiff 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.)

         Following the Court's March 29, 2019 Order, Plaintiff filed the motions before the Court. The Court addresses each motion in turn.

         II. DISCUSSION

         A. Motion for Reconsideration

         Plaintiff 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.

         Reconsideration 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 justifying relief.

         A 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))).

         1. Rule 59(e)

         First, 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.[1]

         Second, 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.[2] Nothing has changed with the complaint since that time.[3] For these reasons, the Court refrains from altering or amending its dismissal pursuant to Federal Rule of Civil Procedure 59(e).

         2. Rule 60(b)

         Plaintiff further asserts that relief is necessary under provisions only available under the stricter standard of Rule 60(b) .

         a. Ru ...


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