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Cary v. The Cordish Co.

United States District Court, W.D. Kentucky, Louisville Division

December 28, 2016

TREMAINE CARY, et al., Plaintiffs,


          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, as well as information from (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)


         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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