Dyals et al v. Gregory et al, No. 2:2012cv00207 - Document 84 (S.D. Ga. 2014)
Court Description: ORDER denying 67 Motion for Reconsideration. To the extent Plaintiff attempts to assert a claim under FEPA, however, such a claim is dismissed. Signed by Judge J. Randal Hall on 11/25/14. (cmr)
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Dyals et al v. Gregory et al Doc. 84 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION ROGER DYALS and DEE * GRANT PORTER, * * Plaintiffs, * * v. * CV 212-207 * SHERIFF TOMMY J. GREGORY, * in his official capacity, * * Defendant. * ORDER Presently for pending before reconsideration Defendant's motion of for the this Court is Court's summary Defendant's partial judgment.1 motion denial (Doc. of 67.) 1 Defendant characterizes the present motion as alternatively moving for summary judgment. In his first motion for summary judgment (doc. 64), the Court addressed claims of age discrimination and retaliation, as well as a violation of the Fair Labor Standards Act ("FLSA") and retaliation under the FLSA. Defendant's present motion does not address any new legal claims, aside from briefly addressing a claim under the Fair Employment Practices Act ("FEPA"). " [I]t is improper for a party to file a successive motion for summary judgment which is not based upon new facts and which seeks to raise arguments it could have raised in its original motion." Campers' World Int'l, Inc. v. Perry Ellis Int'l, Inc., 221 F.R.D. 409 (S.D.N.Y. 2004). The only "new evidence" presented by Defendant are two affidavits from individuals whose depositions were relied upon with his initial motion for summary judgment. Thus, to the extent Defendant seeks to re-litigate the issues already decided by the Court, the Court construes this motion as one for reconsideration alone. As to the FEPA claim, Defendant asserts "devoid of any factual basis, [Defendant] violated the that Plaintiffs' complaint is legal theory, or other allegation as to how [FEPA]." however, mirrors that of the ADEA. (Doc. 67 Moreover, at 19.) FEPA's language, Count I of Plaintiffs' second amended complaint refers generically to Age Discrimination, and not to the ADEA specifically. Thus, the "complaint clearly indicates the grounds upon which the Plaintiff[s' Corp. , No. discrimination] l:06-cv-0371, claim rests." 2007 WL 781337, at *4 See Mclntyre v. Eckerd (N.D. Ga. Mar. 5, 2007). Dockets.Justia.com Defendant's motion is hereby DENIED for the reasons set forth below. I. STANDARD FOR RECONSIDERATION Pursuant to Federal Rule of Civil Procedure 59(e), may seek to alter or amend a twenty-eight days "[R]econsideration remedy, to Catering Fla. be of a employed & Serv. 2004) after Int'l, (citation judgment the entry previous order sparingly.'" N.V., ha [s] for to of is Supp. omitted). reconsideration civil *an In the Court Cruise 2d 1347, a and thus i t is "ask judgment. extraordinary v. fact, to Inc. (E.D. Va. 08-23183, Vidinliey 5459335, v. Mel 1983) , Bohannan quoted in Weitz 2009 WL 1636125, v. at Carey *1 (N.D. at Int'l, Ga. Roofing, *1 Co. v. (S.D. Inc., Dec. Inc., 15, 2008) . for improper on a F.R.D. June (S.D. motion rethink Transp. Fla. No. 99 Ships 1358 already thought through — rightly or wrongly." Belt, party case within the Williams 320 F. reconsideration is not an appeal, motion in a a Ins. 11, l:07-cv-762, A movant what it Above the 99, 101 Co., No. 2009) and 2008 must WL "set forth facts or law of a strongly convincing nature to induce the However, FEPA requires that Plaintiffs file a sworn complaint with the "administrator" of the Georgia Commission on Equal Opportunity. O.C.G.A. § 45-19-36. Plaintiffs provide no indication that they have done so, and have failed to respond entirely to Defendant's motion on this issue. See LR 7.5, SDGa ("Failure to respond within the applicable time period shall indicate that there is no opposition to a motion."). Thus, the motion deemed unopposed and any claim based on FEPA is hereby DISMISSED. is court to reverse its prior decision." Inc., 148 F.R.D. Although relief, that 294, Rule district merit 294 (M.D. Fla. 59(e) does courts in reconsideration change in controlling law; and (3) the need injustice. Hamilton, Salem, to See, correct e.g., 385 F. Supp. Saxon & of (2) Nielsen, set an Wal-Mart Stores, (citation omitted). forth Circuit the have order: grounds identified (1) an for three intervening the availability of new evidence; clear Ctr. 2d 1330, 1993) not this Cover v. error for or prevent Biological manifest Diversity v. 1337 (N.D. Ga. 2005); Sussman v. P.A., 153 F.R.D. 689, 694 (M.D. Ga. 1994) . "Motions for reconsideration should not be used to raise legal arguments which could and should have been made before the judgment was issued." Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 see also Collins (11th Cir. Ass'n Local 1423, Ga. 2013 Jan. be used to 1998); No. 2:09-cv-093, 30, 2013) relitigate v. Int'l Longshoremen's 2013 WL 393096, at *1 (S.D. ("Motions for reconsideration should not issues which have already been found lacking." (internal quotations omitted)); Michael Linet, Inc. v. Vill. of Wellington, ("[A party] Fla., 408 F.3d 757, cannot use a Rule 59(e) 763 (11th Cir. 2005) motion to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment."). Further, Rule 59(e) "is not a vehicle for rehashing arguments already rejected by 3 the court or Int'l v. for refuting the court's prior decision." Nu-Cape Constr., Inc., 169 F.R.D. 680, 686 Wendy's (M.D. Ga. 1996). Where, as here, the motion for reconsideration is untimely,2 the movant must instead rely on Rule 60(b), to "relieve judgment, a party order, or or its legal proceeding" which allows a court representative if one of from a final the following or six excusable grounds are met: (1) mistake, inadvertence, surprise, neglect; (2) newly discovered reasonable diligence, could not in time to move evidence that, with have been discovered for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Fed. R. Civ. P. 2:13-cv-120, 60 (b) ; Graveling v. 2014 WL 5426811, at *2 In contrast to a Rule 59 motion, Sirote & Permute, (S.D. Ala. Oct. P.C., No. 24, 2014). one made under Rule 60(b) need only be made "within a reasonable time," but no longer than one year after the entry of the order. Under Rule 60(b)(6) "a court may Fed. R. Civ. P. grant relief for 60(c)(1). any reason justifying relief from the operation of judgment. under 2 this clause is an extraordinary remedy which other Relief may be Defendant filed his motion approximately forty days after the Court's September 5, 2014 Order. invoked only Miller v. Ga. Jan. upon Brown, a No. 17, 2014) showing of exceptional l:12-cv-166, 2014 WL 229481, (quoting Mitchell v. Miller, 2007 WL 1183896, at *1 (M.D. Ga. Apr. II. reconsideration standards of arguments: that (1) fails on rule. and (3) the merits Defendant Dyals' not summary 4:99-cv-080, as Defendant's motion it bases does his not motion meet on the three FLSA (2) Plaintiffs cannot non-discriminatory reason was pretextual; claim is subject to the law enforcement In support of his motion, Defendant does not present any newly discovered evidence that, could (S.D. Plaintiffs cannot prove a prima facie case of age legitimate, exemption. *1 DISCUSSION discrimination without relying on hearsay; prove the No. at 19, 2007)). Even characterized as one under Rule 60, for circumstances." have been judgment. discovered Indeed, in the with reasonable diligence, time only for the additional motion evidence presents is his own affidavit and that of Michael Fender, was deposed on August 2, 2013. for he who Thus, as Defendant recognizes in his reply, he must rely on Rule 60(b)(6): "any other reason that justifies relief." 677, 680 that relief which may See Griffin v. (11th Cir. under be circumstances. 1984) [Rule invoked The ("It is 60(b)(6)] only party upon seeking 5 Swim-Tech Corp., well is a established, an however, extraordinary showing relief 722 F.2d has of the remedy exceptional burden of showing that absent hardship will 286 U.S. 106, such relief, result." 119 an ^extreme' and ^unexpected' (quoting United States v. (1932) Swift & Co., (internal citations omitted)). A. Prima Facie Case of Age Discrimination Defendant first argues that the Court improperly relied on hearsay statements in ruling that Plaintiffs met the prima facie case. With detailed not do its the so September factual 5, basis again here. 2014 Order, the for Plaintiffs' As is relevant Court claims, to thoroughly and thus does the present motion, Defendant focuses on three instances of hearsay: (1) a statement relayed to Plaintiffs that Defendant allegedly said, "Why would I get rid of a younger deputy when I can get rid of a Bill Argo or Roger Dyals?"; about how (2) statements from Kevin Barber to Plaintiffs Defendant "greybeards"; and (3) was determined a chart created to get rid of from Defendant's the records showing a pattern of age discrimination. The court for case of this circuit is clear that "a district may consider a hearsay statement in passing on a motion summary admissible Jones v. 2012) law judgment evidence at if the trial UPS Ground Freight, statement or Here, "whether to 683 F.3d 1283, (quoting Macuba v. Deboer, 1999)). reduced could reduced admissible 1293-94 193 F.3d 1315, plaintiff's be exhibits form." (11th Cir. 1322 (11th Cir. are or admissible as presently submitted is of no moment[] 6 to are not [b]ecause defendants have made no reduced to admissible form at each party's burden at form." Prince Hotel, M, 2012 WL 4711897, Even could assuming not be presented showing these trial[.] exhibits Of cannot course, it be remains trial to present evidence in admissible S.A. v. Blake Marine Grp., at *1 n.5 (S.D. Ala. that aforementioned reduced sufficient the to evidence circumstantial evidence of Defendant's Oct. admissible Excluding any comments made, • that to 2, the 11-0537-WS- 2012). comments form, meet No. and Plaintiffs prima chart still facie case. Plaintiffs offered the following as intent: departure from the employee ranking system; • Defendant's hiring of two deputies outside the protected class days before terminating Plaintiffs; • • Simply The actual severity of the budget shortfall; and Defendant's hiring of individuals outside protected class subsequent to the layoffs. put, sufficient the evidence discrimination. Defendant Court has to This is satisfied set forth a conclusion is failed to present that prima Plaintiffs facie any evidence produced case bolstered by the of the of age fact that hardship, extreme or otherwise, that would necessitate reconsideration. B. Pretext for Age Discrimination Defendant next quarrels with the Court's genuine issue of material fact as to pretext. 7 finding of a In its motion, Defendant challenges each of the Court's stated bases attempt to re-litigate previously decided issues. Defendant presents argument as to (1) shortfall; layoffs; (2) (3) deviation the the individuals hiring from the an Specifically, the severity of the budget hired subsequent ranking system; in prior to the and to Plaintiffs' layoffs; (5) the (4) the discriminatory comments. Again, evidence motion Defendant or manifest for attempt[s] does errors Cir. any Defendant for Instead, newly-discovered the his grant motion of a [] improperly to relitigate old matters by rehashing arguments he (11th present present necessary reconsideration. had previously made." 719 "not Allaben v. 2014). Coupled evidence has failed of to Howanitz, with hardship, meet his 579 F. App'x Defendant's extreme burden and 716, failure or to otherwise, his motion for reconsideration as to the pretext issue must fail as well. C. FLSA Law Enforcement Exemption As to Plaintiff Dyals' FLSA claim, this Court previously ruled that Defendant did not meet his burden of proving the law enforcement exemption evidence that than he Dyals' work period was more twenty-eight Defendant now applied because days. To rectify presents the affidavit did not produce any than seven but less his prior of Michael omission, Fender, the Director of Finance for Camden County, the final line of which 8 states "Dyals's H 10.) work This period unsupported was 14 days." assertion is not convincing nature [that would] prior decision." Cover, 148 F.R.D. at 294. more than a year before the (Doc. "of 67, a Ex. 1 strongly induce the court to reverse its Court's Fender was deposed ruling on the summary judgment motion, and Defendant relied on Fender's deposition in his briefs. producing Thus, "newly the Court cannot conclude that Defendant is discovered evidence that, with diligence, could not have been discovered" sooner. P. 60(b)(2). Moreover, reasonable Fed. R. Civ. Defendant has again failed to show how he will face extreme or undue hardship moving forward to trial. Thus, the Court finds that the extraordinary remedy provided in Rule 60(b) is inapplicable to the present case. III. CONCLUSION The Court has thoroughly considered the issues that form the basis of its prior ruling and finds neither a reason nor a legal basis for reconsidering its previous order. motion for reconsideration of this Court's Defendant's September 5, 2014 Order denying in part Defendant's motion for summary judgment (doc. 67) is therefore DENIED. to assert DISMISSED. a claim under To the extent Plaintiff attempts FEPA, however, such a claim is ORDER November, ENTERED at Augusta, Georgia, this c?S* 2014. J. ^AtfDAL HALL STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 10 day of
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