United States District Court, S.D. Florida
ORDER DENYING MOTION FOR RECONSIDERATION
N. Scola, Jr. United States District Judge.
Kathleen Forbes, Linda Ray, and Edna Remington ask the Court
to reconsider its order (ECF No. 156), granting summary
judgment in Defendant Wal-Mart Stores, Inc.’s favor.
The motion has been fully briefed. (Def.’s Resp., ECF
No. 161; Pls.’ Reply, ECF No. 162.) For the reasons
that follow, the Court denies the
Plaintiffs’ motion (ECF No. 158).
the interests of finality and conservation of scarce judicial
resources, reconsideration of an order is an extraordinary
remedy that is employed sparingly.” Gipson v.
Mattox, 511 F.Supp.2d 1182, 1185 (S.D. Ala. 2007). A
motion to reconsider is “appropriate where, for
example, the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to
the Court by the parties, or has made an error not of
reasoning but of apprehension.” Z.K. Marine Inc. v.
M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla. 1992)
(Hoeveler, J.) (citation omitted). “Simply put, a party
may move for reconsideration only when one of the following
has occurred: an intervening change in controlling law, the
availability of new evidence, or the need to correct clear
error or prevent manifest injustice.” Longcrier v.
HL-A Co., 595 F.Supp.2d 1218, 1247 (S.D. Ala. 2008)
(quoting Vidinliev v. Carey Int’l, Inc., No.
CIV.A. 107CV762-TWT, 2008 WL 5459335, at *1 (N.D.Ga. Dec. 15,
2008)). However, “[s]uch problems rarely arise and the
motion to reconsider should be equally rare.” Z.K.
Marine Inc., 808 F.Supp. at 1563 (citation omitted).
Certainly, if any of these situations arise, a court has
broad discretion to reconsider a previously issued order.
Absent any of these conditions, however, a motion to
reconsider is not ordinarily warranted.
the Plaintiffs complain that Walmart’s delayed
discovery responses hampered their ability to present key
evidence in their opposition to Walmart’s motion for
summary judgment. They thus appear to rely on the
“availability of new evidence” to support their
request for the Court to reconsider its order. In the
Eleventh Circuit, courts apply a five-part test to determine
whether such relief is warranted:
(1) the evidence must be newly discovered since the trial or
final judgment or order; (2) due diligence on the part of the
movant to discover the new evidence must be shown; (3) the
evidence must not be merely cumulative or impeaching; (4) the
evidence must be material; and (5) the evidence must be such
that a new trial or reconsideration of the final judgment or
order would probably produce a new result.
Application of Consorcio Ecuatoriano de
Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc.,
747 F.3d 1262, 1274 (11th Cir. 2014) (quotations and
alteration indications omitted).
begin with, the Court does not find the Plaintiffs have shown
that they themselves were blameless in Walmart’s late
discovery production. In fact, the Court’s review of
the record shows the Plaintiffs bear some, if not much, of
the responsibility because of their own lack of due diligence
in seeking the information or bringing the issue to the
Court’s attention. But even putting aside the
Plaintiffs’ own dilatory behavior, the Court, after
careful evaluation, finds the “new” evidence the
Plaintiffs have presented is not “such that a . . .
reconsideration of the . . . order would probably produce a
new result.” In fact, the Court affirmatively concludes
the new evidence would not in any way alter its order. The
Plaintiffs have simply not established that a single one of
the purported comparators they now identify are sufficiently
similar to warrant comparison. Lewis v. City of Union
City, Georgia, 918 F.3d 1213, 1228 (11th Cir. 2019)
(holding that “a plaintiff and her comparators must be
sufficiently similar, in an objective sense, that they cannot
reasonably be distinguished”) (quotation omitted).
Plaintiffs seem to fundamentally misapprehend their burden in
countering Walmart’s motion for summary judgment. They
submit that the record evidence leaves many questions
unanswered regarding the status and qualifications of the
purported comparators as well as the reasons the Plaintiffs
were paid less or not promoted. (Pls.’ Reply at
162–63.) These blanks, the Plaintiffs insist, represent
questions of fact that must be resolved by a jury. The
Plaintiffs have it backwards: in order to survive
Walmart’s showing that the record as a whole could not
lead a rational trier of fact to find in the
Plaintiffs’ favor, the Plaintiffs themselves
are “required to ‘go beyond the pleadings’
and present competent evidence designating ‘specific
facts showing that there is a genuine issue for
trial.’” United States v. $183,791.00,
391 Fed. App’x 791, 794 (11th Cir. 2010) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
It is precisely the lack of evidence showing a connection
between Walmart’s discriminatory intent and the
Plaintiffs’ pay and promotion opportunities, at this
stage of the litigation, that prevents them from moving
forward to a trial. The Plaintiffs do not get to have a jury
decide their case if all they can establish is that it was
possible they were discriminated against.
the Court denies the Plaintiffs’
motion for reconsideration (ECF No. 158).