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Slate v. American Broadcasting Companies, Inc.

United States District Court, D. Columbia.

December 20, 2013


Page 31

[Copyrighted Material Omitted]

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GREGORY SLATE, Plaintiff, Pro se, Washington, DC.




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BERYL A. HOWELL, United States District Judge.

Pending before the Court are three motions brought by the plaintiff Gregory Slate: (1) the plaintiff's Motion to Vacate, Clarify, Reconsider or Amend this Court's April 23, 2013 Order Granting Defendant's [ sic ] Motion for Summary Judgment and Motion to Dismiss (" Pl.'s Reconsideration Mot." ), ECF No. 105, pursuant to Federal Rules of Civil Procedure 59(e), 60(a), 60(b)(1), 60(b)(3), and 60(b)(6),[1]which motion seeks to alter or amend the Court's Order of April 23, 2013 (" Order" ), ECF No. 102; (2) the plaintiff's Objections and Opposition to Defendants' Bill of Costs (" Pl.'s Opp'n to Costs" ), ECF No. 106; and (3) the plaintiff's Request for Judicial Notice in Support of His Motion to Vacate, Clarify, Reconsider or Amend this Court's April 23, 2013 Order Granting Defendant's [ sic ] Motion for Summary Judgment and Motion to Dismiss (" Pl.'s Request Jud. Notice" ), ECF No. 107. The Court's Order challenged by the plaintiff granted summary judgment to the defendants ABC News, Inc., ABC News Interactive, Inc., and Disney/ABC International Television, Inc. (collectively, " defendants" ), and also dismissed the action on the additional ground that such a sanction was appropriate for bad-faith litigation conduct. See Slate v. ABC, Inc., 941 F.Supp.2d 27, 52 (D.D.C. 2013) (" Opinion" ). For the reasons set forth below, all three of the plaintiff's motions are denied.


The factual background of this copyright case over the defendants' alleged unauthorized use of less than one minute of video footage, to which the plaintiff claims a copyright, is thoroughly set out in the Court's prior Memorandum Opinion and will not be repeated here. See Slate, 941 F.Supp.2d at 29--38. A brief review of the procedural history in this matter is helpful to provide context for consideration of the plaintiff's pending motions.

Following the filing of the amended complaint, the plaintiff's counsel moved to withdraw, Mot. for Withdrawal of Appearance, ECF No. 13, having advised the plaintiff that " their withdrawal is an ethical necessity." Pl.'s Opp'n to Mot. for Withdrawal at 2, ECF No. 14. Upon hearing the reasons underlying that motion, the motion was granted and the then-presiding Judge recused himself. See Minute Order (Aug. 19, 2010); Slate, 941 F.Supp.2d at 32 n.5. The case was then re-assigned to the current presiding Judge

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and the plaintiff proceeded pro se. Slate, 941 F.Supp.2d at 32 n.5.

The ensuing litigation prompted a significant number of discovery disputes, including no fewer than twelve motions for protective orders and motions to compel and two motions for sanctions based on the other side's allegedly impermissible conduct. See ECF Nos. 24, 29, 35, 38, 39, 56, 61, 62, 65, 66, 72, 77, and 78; see also Slate v. ABC, 802 F.Supp.2d 22, 23 (D.D.C. 2011) (affirming Magistrate Judge's decision to sequester laptop and external hard drive and deny plaintiff's motion to compel production of the hard drives); Slate v. ABC, 274 F.R.D. 350, 351 (D.D.C. 2011)(affirming Magistrate Judge's decision to deny the plaintiff's motion to compel production of records relating to, inter alia, personnel and employment records for defendants' employees).

Following discovery, the defendants filed Motions for Summary Judgment, ECF No. 93, and to Dismiss for Bad-Faith Conduct of Litigation, ECF No. 94. These motions were granted on April 23, 2013. See Order, ECF No. 102. This litigation has not come to an end, however; instead, the plaintiff has filed the three pending motions in an effort to revive his original claims. As noted, the plaintiff has moved (1) for reconsideration; (2) to deny the defendants' Bill of Costs; and (3) to take Judicial Notice.[2] These motions are addressed below.


A. Federal Rule of Civil Procedure 59(e)

A motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) " is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Messina v. Krakower, 439 F.3d 755, 758, 370 U.S. App. D.C. 128 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208, 316 U.S. App. D.C. 152 (D.C. Cir. 1996)). A district court's denial of a request for this extraordinary relief is reviewed only for abuse of discretion. See Dyson v. District of Columbia, 710 F.3d 415, 420, 404 U.S. App. D.C. 228 (D.C. Cir. 2013); Messina, 439 F.3d at 759; Anyanwutaku v. Moore, 151 F.3d 1053, 1058, 331 U.S. App. D.C. 379 (D.C. Cir. 1998); Firestone, 76 F.3d at 1208.

Absent a demonstrated intervening change of controlling law or new evidence, the law is well-settled that litigants may not use Rule 59(e) either to repeat unsuccessful arguments or to assert new but previously available arguments. As the Supreme Court observed, " Rule 59(e) permits a court to alter or amend a judgment, but it may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008) (internal quotation marks and citation omitted); see also Messina, 439 F.3d at 759 (finding no error in denying Rule 59(e) motion where " motion did nothing more than rely on the same arguments that [the movant] originally made." ) (internal quotation marks and citation omitted). This is because " Rule 59(e) motions are aimed at reconsideration, not initial consideration," and arguments raised for the first time on a Rule 59(e) motion may be deemed " waived." GSS Grp. Ltd. v. Nat'l Port Auth., 680 F.3d 805, 812, 401 U.S. App. D.C. 1 (D.C. Cir. 2012); see also District of Columbia v. Doe, 611 F.3d 888, 896, 391 U.S. App. D.C. 388

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(D.C. Cir. 2010) (" [A]n issue presented for the first time in a motion pursuant to Federal Rule of Civil Procedure 59(e) generally is not timely raised; accordingly, such an issue is not preserved for appellate review unless the district court exercises its discretion to excuse the party's lack of timeliness and consider the issue." ). Thus, " Rule 59(e) is not a vehicle to present a new legal theory that was available prior to judgment," Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403, 401 U.S. App. D.C. 263 (D.C. Cir. 2012), or " a chance for [a party] to correct poor strategic choices." SEC v. Bilzerian, 729 F.Supp.2d 9, 15 (D.D.C. 2010); see also Kattan by Thomas v. District of Columbia, 995 F.2d 274, 276, 301 U.S. App. D.C. 374 (D.C. Cir. 1993) (" [T]his Court has recognized that a losing party may not use a Rule 59 motion to raise new issues that could have been raised previously." ). " The strictness with which such motions are viewed is justified by the need to protect both the integrity of the adversarial process in which parties are expected to bring all arguments before the court, and the ability of the parties and others to rely on the finality of judgments." United States Commodity Futures Trading Comm'n v. McGraw-Hill Cos. , Inc., 403 F.Supp.2d 34, 36 (D.D.C. 2005); accord Silk v. Sandoval, 435 F.2d 1266, 1268 (1st Cir. 1971) (acknowledging " the complementary interest in speedy disposition and finality, clearly intended by Rule 59" ).

To constitute " clear error" within the meaning of Rule 59(e), courts have required " 'a very exacting standard,'" Bond v. U.S. Dep't of Justice, 286 F.R.D. 16, 22 (D.D.C. 2012) (quoting Lightfoot v. District of Columbia, 355 F.Supp.2d 414, 422 (D.D.C. 2005)), such that the " final judgment must be 'dead wrong' to constitute clear error." Lardner v. FBI, 875 F.Supp.2d 49, 53 (D.D.C. 2012) (quoting Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)). Indeed, the Seventh Circuit has vividly observed that " [t]o be clearly erroneous, a decision must strike [a court] as more than just maybe or probably wrong; it must . . . strike [the court] as wrong with the force of a five-week-old, unrefrigerated dead fish." Parts & Electric Motors, 866 F.2d at 233. Hence, a fortiori, " '[m]ere disagreement does not support a Rule 59(e) motion.'" United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (quoting Hutchinson v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993)).

Similarly, although " [t]he term 'manifest injustice' eludes precise definition," Roane v. Gonzales, 832 F.Supp.2d 61, 64 (D.D.C. 2011), it is clear that " manifest injustice" is an exceptionally narrow concept in the context of a Rule 59(e) motion. The D.C. Circuit has observed that, under Rule 59(e), " manifest injustice does not exist where . . . a party could have easily avoided the outcome, but instead elected not to act until after a final order had been entered." Ciralsky v. CIA, 355 F.3d 661, 665, 359 U.S. App. D.C. 366 (D.C. Cir. 2004) (internal quotation marks omitted). In a slightly different context, the Circuit has said that manifest injustice arises from " rulings that upset settled expectations--expectations on which a party might reasonably place reliance." Qwest Servs. Corp. v. FCC, 509 F.3d 531, 540, 379 U.S. App. D.C. 4 (D.C. Cir. 2007). These cases make clear that a manifest injustice does not result merely because a harm may go unremedied. Accord Associated Gen. Contractors of Cal., Inc. v. Cal. State. Council of Carpenters, 459 U.S. 519, 536, 103 S.Ct. ...

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