United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United Slates District Judge.
cause is before the Court on Plaintiff's Motion for
Reconsideration of the Court's December 7, 2017 Order
(Doc. 65, Motion), filed December 18, 2017. In the Motion,
Plaintiffs Laveranues Coles and his associated company,
Trouble Livin Life, LLC (collectively Coles), seek
reconsideration of the Order (Doc. 64, Order), filed December
7, 2017, in which the Court granted summary judgment in favor
of the Defendant, City of Jacksonville (City). In the Order,
the Court determined that because Coles had not received a
final decision from the City on his zoning exception
applications, his claims were not ripe. Additionally, the
Court found that Coles had failed to show that obtaining a
final decision from the City was futile, thereby otherwise
excusing him from presenting a ripe controversy to the Court.
See generally Coles v. City of Jacksonville, No.
3:15-cv-1521-J-34PDB, 2017 WL 6059661 (M.D. Fla. Dec. 7,
2017). Coles asserts that the Court's Order
was “in error” and “incorrect, ”
see Motion at 2, 3, and requests that the Court
vacate the Order and permit the matter to proceed to trial.
Id. at 1. On December 27, 2017, the City filed a
Response to Coles' Motion (Doc. 66, Response), broadly
asserting that Coles failed to sufficiently argue why
reconsideration was warranted. Accordingly, this matter is
ripe for review.
motion to alter or amend a judgment may be filed pursuant to
Federal Rule of Civil Procedure 59(e),
(Rule(s)). Rule 59(e) affords the Court discretion to
reconsider an order which it has entered. See Mincey v.
Head, 206 F.3d 1106, 1137 (11th Cir. 2000);
O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th
Cir. 1992). “The only grounds for granting a Rule 59
motion are newly-discovered evidence or manifest errors of
law or fact.” Arthur v. King, 500 F.3d 1335,
1343 (11th Cir. 2007) (quotations and citations omitted).
This Court has interpreted those parameters to include
“(1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct
clear error or manifest injustice.” Lamar
Advertising of Mobile, Inc. v. City of Lakeland, Fla.,
189 F.R.D. 480, 489 (M.D. Fla. 1999). However, 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.” Michael Linet,
Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763
(11th Cir. 2005). Notably, “to reconsider a judgment,
there must be a reason why the court should reconsider its
prior decision, and the moving party must set forth facts or
law of a ‘strongly convincing nature' to induce the
court to revise its prior decision.” Williams v.
Cruise Ships Catering & Serv. Int'l. N.V., 320
F.Supp.2d 1347, 1358 (S.D. Fla. 2004) (quoting Sussman v.
Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694
(M.D. Fla. 1994)). Indeed, the Eleventh Circuit Court of
Appeals has held that the “[d]enial of a motion for
reconsideration is especially sound when the party has failed
to articulate any reason for the failure to raise the issue
at an earlier stage of the litigation.” Sanderlin
v. Seminole Tribe of Fla., 243 F.3d 1282, 1292 (11th
Cir. 2001) (internal quotations and citation omitted).
Moreover, “[w]hen evaluating a motion for
reconsideration, a court should proceed cautiously, realizing
that ‘in the interests of finality and conservation of
scarce judicial resources, reconsideration of a previous
order is an extraordinary remedy to be employed
sparingly.'” United States v. Bailey, 288
F.Supp.2d 1261, 1267 (M.D. Fla. 2003) (citation omitted).
instant Motion, Coles raises several arguments in support of
his request that the Court should reconsider the Order,
vacate it, and permit this controversy to proceed to trial.
He specifically challenges the Court's decision not to
evaluate his procedural due process claim; the Court's
ripeness and futility determinations; the Court's
decision that Coles needed to apply for an additional
distance zoning variance; and the Court's alleged failure
to acknowledge the applicability of a zoning grandfather
clause to Coles' case. Motion at 4-8; 8-13; 13-14; 15-16.
With each argument, Coles asserts that the Court's
decisions were based on “errors of law or fact.”
Id. at 2, 3. However, upon considered review of
Coles' Motion, the Court concludes that at most, Coles is
attempting to “relitgate old matters.”
Michael Linet, Inc., 408 F.3d at 763. As such, the
Motion will be denied.
first argues that the Court erred in ruling that he failed to
allege a procedural due process violation. Coles also asserts
that the Court failed to address his arguments and erred in
determining that the claim was not ripe. Motion at 3, 4-8.
Coles frames these arguments by referring to the Court's
statement in the Order indicating that
[i]n his response to the City's Motion, Coles argues for
the first time that the City violated his procedural due
process rights. . . . [This] argument [is] not properly
before the Court. Coles cannot interject [a] new cause of
action against the City in his response to its motion for
summary judgment. See Gilmour v. Gates, McDonald and
Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“At the
summary judgment stage, the proper procedure for plaintiffs
to assert a new claim is to amend the complaint in accordance
with FED.R.CIV.P. 15(a). A plaintiff may not amend [his]
complaint through argument in a brief opposing summary
judgment.”) (citation omitted)). As such, the Court
will not address these new claims.
Coles, 2017 WL 6059661 at *7 n.10. Coles argues that
“this statement is incorrect . . . [and that his]
Complaint alleges Defendants violated [his] First and
Fourteenth Amendment rights based on the improper denial of
the applications.” Motion at 4.
relevant portions of his Complaint, Coles asserts that the
City failed to grant his requested zoning exceptions based on
the City's alleged disdain for Coles' intended use of
the property - i.e., a dancing entertaining establishment
(DEE) serving alcohol (otherwise known as a “bikini
bar.”). Indeed, he asserts that
[t]he City's denial of [his] applications . . . [were]
based upon the City's distaste or dislike of the speech
that Plaintiffs anticipated would be conducted on the
premises once the applications had been approved. Such
denial, based on the content of the speech and the type of
expressive dancing is an unlawful infringement and prior
restraint on Plaintiffs' free speech rights and those of
their patrons and performers.
Doc. 1 at ¶ 65 (Complaint), filed Dec. 28, 2015. These
allegations describe a substantive due process or an
“as applied” challenge to the application of the
City's zoning code to Coles, see e.g.,
Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208,
1212 (11th Cir. 1995) (citing Eide v. Sarasota
County, 908 F.2d 717, 720-26 (11th Cir. 1990));
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1574, 1578 (11th Cir. 1989); the City responded to the
allegations as such, and the Court ultimately adjudicated
that claim. See Coles, 2017 WL 6059661 at *7, 9-10;
Doc. 50 at 5-6 (Defendant's Motion for Summary Judgment),
filed May 1, 2017.
true that in Coles' response to the City's Motion for
Summary Judgment, he attempted, for the first time, to
articulate a procedural due process argument, while also
maintaining his substantive due process claim. See
Doc. 57 at 10-16, 16-18 (Coles' Summary Judgment Motion
Response), filed May 18, 2017. As noted by the Court in its
original Order, “[a]t the summary judgment stage, the
proper procedure for plaintiffs to assert a new claim is to
amend the complaint in accordance with FED.R.CIV.P. 15(a). A
plaintiff may not amend [his] complaint through argument in a
brief opposing summary judgment.” Coles, 2017
WL 6059661 at *7 n.10 (citations omitted). Here, Coles has
failed to establish that the Court committed clear error in
declining to consider his belated procedural due process
claim. Additionally, to the extent that Coles challenges the
Court's ripeness analysis, he simply reiterates the law
and facts raised in his summary judgment pleadings, and
likewise fails to demonstrate how the Court's ruling was
in error, much less “clear error” or represented
a “manifest injustice.” Lamar Advertising of
Mobile, Inc., 189 F.R.D. at 489.
Coles argues that the Court erred in ruling that he failed to
present sufficient evidence that any attempt on his part to
seek a final decision from the City on his zoning exceptions
would be futile. Motion at 3-4, 8-13. In large measure, the
arguments Coles presents in his Motion on this issue restate
the positions he presented to the Court on summary judgment,
and hence represent an attempt to “relitgate old
matters.” Michael Linet, Inc., 408 F.3d at
context, Coles also challenges the limited consideration the
Court gave to the testimony of his proffered expert, Paul M.
Harden, who opined that it would be futile for Coles to seek
additional zoning variances as directed by the City's
ultimate zoning decision maker, the LUZ Committee.
See Doc. 52-22 at 2-3 (Expert Report of Paul M.
Harden). However, Mr. Harden's opinion regarding whether
it was futile for Coles to seek additional zoning variances
was not supported by either the law or facts before the
Court. The LUZ Committee advised Coles that it was unable to
make an ultimate ruling on his request for zoning exceptions
because he needed to apply for an additional distance
variance. Coles, 2017 WL 6059661 at *6. Coles never
submitted the request for that additional variance to the
City zoning commission, which at most, would render a
non-binding recommendation to the LUZ Committee. Id.
at *4, 6. While the record certainly shows that members of
the intermediate zoning commission were not in common
agreement regarding Coles' requests for zoning
exceptions, id. at *5-6, 13, the record does not
support an inference that the ultimate decision maker, the
LUZ Committee, had “dug in its heels, and made clear
that all such applications [would] be denied.”
Murphy v. New Milford Zoning Comm'n, 402 F.3d
342, 349 (2d Cir. 2005); see also Gilbert v. City of
Cambridge, 932 F.2d 51, 61 (1st Cir. 1991) (While
“futility can excuse a plaintiff's eschewal of a
permit application, the mere possibility, or even the
probability, that the responsible agency may deny the permit
may not be enough to trigger the excuse. To come within the
exception, a sort of inevitability is required: the prospect
of refusal must be certain (or nearly so).”).
Coles' attempt to create an issue of fact by presenting
Harden's speculative and unsupported opinion did not
present more than a scintilla of evidence and failed as a
matter of law.
also argues that reconsideration is warranted because the
Court erred in ruling that he needed to apply for the
additional distance exception. Motion at 4, 13-14. In his
summary judgment filings, Coles laid out an argument for why
the additional distance exception was not relevant to his
application for zoning exceptions. See Coles Summary
Judgment Motion Response at 14-15. The Court addressed those
arguments in detail in its Order. Coles, 2017 WL
6059661 at *13. In his current Motion, Coles simply reasserts
his previously raised arguments. Motion at 13-14. As with his
earlier challenges to the Court's ...