United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
David
J. Hale, Judge.
Plaintiffs
Tremaine Cary, Jeremy Underwood, Lewis Underwood, Andrew
Peters, and Andrew Peters, Jr. have moved to alter, amend, or
vacate the Judgment in this case on the basis of newly
discovered evidence. (Docket No. 40) Because the evidence
they offer was not previously unavailable and would not alter
the Court's conclusion in any event, their motion will be
denied.
I.
BACKGROUND
Plaintiffs,
who are African-American, allege that they were discriminated
against on the basis of race when they were denied admission
to Fourth Street Live, a Louisville, Kentucky entertainment
venue. (D.N. 1-2, PageID # 10-15) They asserted a single
claim of racial discrimination under the Kentucky Civil
Rights Act, Ky. Rev. Stat. § 344.120. (Id.,
PageID # 13) Defendant The Cordish Company moved for summary
judgment, arguing that it did not own or operate Fourth
Street Live and thus could not be liable for the alleged
discrimination. (D.N. 24) In a Memorandum Opinion and Order
entered March 23, 2016, the Court granted The Cordish
Company's motion. (D.N. 38) The Court found that
Plaintiffs had failed to demonstrate a genuine issue of
material fact as to an essential element of their claim,
namely that they were attempting to contract for
“services ordinarily provided by” The Cordish
Company when the alleged discrimination occurred.
(Id. (quoting Miller v. Freedom Waffles,
Inc., No. 3:06CV-159- H, 2007 U.S. Dist. LEXIS 13217, at
*7 (W.D. Ky. Feb. 23, 2007))) Plaintiffs now seek relief
under Federal Rule of Civil Procedure 59(e). (D.N. 40, PageID
# 854)
II.
ANALYSIS
“Rule
59(e) allows for reconsideration; it does not permit parties
to effectively ‘re-argue a case.'” Howard
v. United States, 533 F.3d 472, 475 (6th Cir. 2008)
(quoting Sault Ste. Marie Tribe of Chippewa Indians v.
Engler, 146 F.3d 367, 374 (6th Cir. 1998)). A motion
under Rule 59(e) may be granted for one of four reasons:
“(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.” Intera
Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)
(citing Gencorp, Inc. v. Am. Int'l Underwriters,
178 F.3d 804, 834 (6th Cir. 1999)).
According
to Plaintiffs, newly discovered evidence warrants
reconsideration of the Court's decision in this case.
(See D.N. 40-1) They present three news articles
from the website cordishinthenews.com, as well as
information from cordish.com. (See id,
PageID # 858 nn.1-4; D.N. 45-1-45-4) The latter is offered to
establish that Zed Smith is the chief operating officer of
The Cordish Company, while the news articles are meant to
show that The Cordish Company is in fact the owner and
operator of Fourth Street Live. (D.N. 40-1, PageID # 857-58)
“To
prevail on a motion brought pursuant to Rule 59(e), newly
discovered evidence ‘must have been previously
unavailable.'” HDC, LLC v. City of Ann
Arbor, 675 F.3d 608, 615 (6th Cir. 2012) (quoting
Gencorp, 178 F.3d at 834). Plaintiffs do not contend
that their new evidence was previously unavailable. Nor could
they, as the articles are several years old. (See,
e.g., D.N. 45-3, PageID # 900 (discussing planned
Cordish Co. project for which “[construction is
expected to start next year and be substantially complete by
2010”)) Thus, Plaintiffs' newly discovered evidence
does not support their request for relief under Rule 59(e).
See HDC, 675 F.3d at 615.
Moreover,
the new evidence suffers from the same deficiencies as the
evidence previously offered by Plaintiffs. As the Court
explained in its earlier Memorandum Opinion and Order, the
fact that Smith may work for The Cordish Company as well as
Fourth Street Live does not mean that The Cordish Company is
liable here.[1] (See D.N. 38, PageID # 851) And
although Plaintiffs assert that anything published on the
company's website constitutes a non-hearsay admission,
the authors of the news articles are unidentified, and the
articles appear to come from outside sources (e.g.,
newspapers). In short, the articles cannot be attributed to
The Cordish Company, and Plaintiffs' new evidence
presents the same hearsay and double-hearsay issues addressed
in the Court's prior decision. (See D.N. 38,
PageID # 850-51)
III.
CONCLUSION
For the
reasons set forth above, and the Court being otherwise
sufficiently advised, it is hereby
ORDERED
that Plaintiffs' Motion to Alter, Amend, or Vacate (D.N.
40) is DENIED.
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