United States District Court, N.D. Mississippi, Aberdeen Division
before this Court is Plaintiff Lora Spann's motion to
alter or amend judgment [Doc. 70]. Having considered the
matter, the Court finds the motion should be denied.
sued her employer, United Parcel Service, for race
discrimination after UPS did not promote her to a full-time
position. UPS moved for summary judgment arguing that Spann
could not establish a prima facie case of discrimination nor
could Spann show that UPS's reasons for not promoting
Spann were pretext.
filed an entirely insufficient response to UPS's motion.
As the Court previously described it, the response was
"only three pages in length, contain[ed] no citations to
either the either the law or the factual record, and fail[ed]
to respond to hardly any" of UPS's arguments. Mem.
Opinion [Doc. 65] at 3. The Court subsequently granted
summary judgment in favor of UPS.
28th day after the Court's order had been entered Spann
filed another response to UPS's motion combined with a
motion to alter or amend judgment. [Doc. 67].UPS responded, and
the matter is now ripe for review.
59 motion is the proper vehicle by which a party can
"correct manifest errors of law or fact" or
"present newly discovered evidence." Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)
(quoting Waltman v. Int'l Paper Co., 875 F.2d
468, 473 (5th Cir. 1989)). A party should not attempt to use
the Rule 59 motion for the purpose of "rehashing
evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment."
Id. (citing Simon v. U.S., 81 F.2d 1154,
1159 (5th Cir. 1990)). "Reconsideration of a judgment
after its entry is an extraordinary remedy that should be
used sparingly." Id.
argues that her motion should be granted to correct a clear
error or to prevent a manifest injustice. She claims that her
counsel inadvertently submitted a preliminary draft of her
response to UPS's motion for summary judgment rather than
the final version.
attorney's "negligent failure to present all of the
available facts crucial to his case in his summary judgment
declaration," is not an "extraordinary
circumstance that would warrant relief under Rule
59(e)." Calton v. Johnson, 307 Fed.Appx. 809,
811 (5th Cir. 2009); Templet, 367 F.3d at 479
("[A]n unexcused failure to present evidence available
at the time of summary judgment provides a valid basis for
denying a subsequent motion for reconsideration.")
party seeks to overturn summary judgment with newly presented
evidence the Court considers: "1) the reasons for the
moving party's default; 2) the importance of the omitted
evidence to the moving party's case; 3) whether the
evidence was available to the non-movant before it responded
to the summary judgment motion; and 4) the likelihood that
the non-moving party will suffer unfair prejudice if the case
is reopened." Templet, 367 F.3d at 479 (citing
Lavespere v. Niagara Machine & Tool Works, Inc.,
910 F.2d 167 (5th Cir. 1990)).
these factors, the Court finds that Spann is not entitled to
relief under Rule 59. The evidence Spann cites in her motion
is not newly discovered. In fact, Spann's initial
response actually listed each of the exhibits. The problem
with her initial response is that it did not contain any
actual citations to specific evidence contained in the
exhibits. Thus, the Court noted that "Rule 56 does not
impose upon the district court a duty to sift through the
record in search of evidence to support a party's
opposition to summary judgment .... Rule 56 allocates that
duty to the opponent of the motion, who is required to point
out the evidence, albeit evidence that is already in the
record, that creates an issue of fact." Skotak v.
Tenneco Resins, Inc., 953 F.2d 909, 916 n.7 (5th Cir.
1992) (citing Nissho-Iwai American Corp. v. Kline,
845 F.2d 1300, 1307 (5th Cir. 1988))." So, while the
evidence now presented by Spann may be important, it was
undoubtedly available at the time of her response.
Spann and her counsel's reason for failure defy belief.
Nothing about Spann's initial response indicates that it
is a draft rather than the intended final
version. The timeline of events also casts doubt on
Spann's claim. The initial response was filed on the 14th
day after UPS made their motion for summary judgment, the
last day to file a response under the local rules without
seeking additional time. See L.U. Civ. R. 7(b)(4).
UPS pointed out the insufficiency of the brief in their
reply. See Def.'s Reply in Supp. of Mot. for
Sum. J. [Doc. 63] at 2-3. Despite notice that her response
was inadequate, Spann made no attempt to correct or
supplement her response before this Court ruled on the
motion. And after the Court ruled, she waited until 28 days
after the judgment had been entered-the last possible day she
could seek to amend the judgment-to present this evidence to
the Court. Even if the ...