United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD SENIOR U.S. DISTRICT JUDGE.
Lawrence Proctor's former attorney filed a motion to
alter or amend the Court's previous order and judgment
granting summary judgment in favor of GEICO Insurance. [DE
77]. Now Proctor is proceeding pro se and has filed a motion
to reopen the case in lieu of replying to the response in
opposition to the motion to alter or amend. [DE 83]. Still,
Proctor has not submitted any new evidence that suggests that
the Court's judgment should be altered and the motion to
alter judgment simply reiterates arguments that the Court has
already considered. As a result, Proctor's motion to
alter or amend [DE 77] and motion to reopen the case [DE 83]
Procedural and Factual Background
January 2, 2019, the Court granted summary judgment for GEICO
Insurance after finding that Proctor had knowingly
misrepresented the purchase price of the RV relevant to this
insurance dispute. It was undisputed that Proctor initially
told the insurance adjuster that he had paid $16, 000 for the
RV. [DE 71; DE 72].
January 29, 2019, the Court received a letter from Proctor,
filed in the record [DE 76] stating, among other things, that
he had actually paid $7, 000 for the RV and asserting that he
was having a dispute with his attorney. In response, on
January 30, 2019, Proctor's former attorney, Than Cutler,
filed a motion to alter or amend the judgment [DE 77] and a
motion to withdraw as Proctor's attorney [DE 78].
Proctor has mailed a letter to the Court with a notarized
exhibit that asserted that Proctor paid $7, 000 for the RV.
[DE 80]. Proctor contends that the document indicating that
he only paid $5, 000 for the RV is fraudulent, stating that
“the document was faked and provided to the court to
sway the court in their favor.” But the RV sales
documents indicating that Proctor paid $5, 000 for the RV
were submitted by Proctor's former attorney as Exhibit 2
to the response in opposition to GEICO's motion for
summary judgment. [DE 49-2]. Proctor's letter also
indicated that he was no longer represented by counsel.
reviewing the letter and attachments, the Court granted
Cutler's motion to withdraw as counsel. [DE 79]. The
Court also urged Proctor to consult the Local Rules,
especially Local Rule 7.1(c) pertaining to the time allowed
to respond and reply to motions and encouraged Proctor to
consult with an attorney. [Id.] The order also
required that the Court's standard packet for pro se
filers be sent to Proctor. [Id.].
responded in opposition to the motion to alter or amend. [DE
82]. Then, Proctor filed a motion to reopen the case that
simply requests that the case be reopened and that a jury
trial be held. [DE 83]. As a result, this matter is ripe for
Rule of Civil Procedure 59(e) permits a party to file a
motion to alter or amend a judgment within 28 days after the
entry thereof. “A court may grant a Rule 59(e) motion
to alter or amend if there is: (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).
motion under Rule 59(e) does not simply provide an
opportunity to reargue a case, and it must be supported
either by a showing that the district court made an error of
law or by newly discovered evidence.” Whitehead v.
Bowen, 301 Fed.Appx. 484, 489 (6th Cir. 2008) (citing
Sault Ste Marie Tribe of Chippewa Indians v. Engler,
146 F.3d 367, 374 (6th Cir. 1998); Roger Miller Music,
Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 395 (6th
Cir. 2007)). The Rule is not “a substitute for
appeal.” Turner v. City of Toledo, 671
F.Supp.2d 967, 969 (N.D. Ohio 2009). “If . . . a Rule
59 motion merely quibbles with the Court's decision, the
proper recourse is not a motion for reconsideration but
instead an appeal to the Sixth Circuit.” Zell v.
Klingelhafer, No. 13-cv-458, 2018 WL 334386, at *4 (S.D.
Ohio Jan. 8, 2018).
motion to alter or amend, Proctor stated, “The sole
issue upon which Plaintiff urges the Court to vacate its
prior order is the Court's finding that Plaintiff's
misrepresentation regarding the purchase price of the RV was
knowingly made.” [DE 77-1 at 1, Pg ID 1060]. Proctor
asserts that his misrepresentation regarding the purchase
price was not knowingly made due to memory issues and
medications that affect his memory. [Id.]. But this
argument was directly addressed and denied by the Court in
the previous memorandum opinion and order. [DE 71 at 21-23,
Pg ID 1032-34].
reiterate, it is undisputed that Proctor misstated the
purchase price of the RV. Chris Cirillo, a Senior Field
Investigator working on behalf of GEICO Insurance, asked
Proctor how much money he paid for the RV, to which Proctor
responded, “I don't really remember. I take a lot
of medicine.” [DE 41-4 at 37, Pg ID 557]. Cirillo
responded by saying, “We're going to need to find
out . . . . Or you can tell me if you remember.”
[Id.]. Proctor replied, “16 something. I
don't know what it was. I ...