Hewitt v. Western and Southern Financial Group Flexible Benefits Plan et al, No. 0:2016cv00120 - Document 35 (E.D. Ky. 2017)

Court Description: MEMORANDUM OPINION & ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Reconsider DE 31 be OVERRULED. Signed by Judge Henry R. Wilhoit, Jr on 7/7/17.(KSS)cc: COR, Hewitt (via US Mail)

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Hewitt v. Western and Southern Financial Group Flexible Benefits Plan et al Doc. 35 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION at ASHLAND CIVIL ACTION NO. 16-120-HRW ALLEN R. HEWITT, v. PLAINTIFF, MEMORANDUM OPINION AND ORDER WESTERN AND SOUTHER!'\' FINANCIAL GROUP FLEXIBLY BENEFITS PLAN and THE WESTERN AND SOUTHERN LIFE INSURANCE CO., DEFENDANTS. This matter is before the Court upon Plaintiffs Motion to Reconsider [Docket No. 31 ]. The motion has been fully briefed by the parties [Docket Nos. 31, 33 and 34]. For the reasons set forth herein, the Court will overrnle the motion. I. Plaintiff commenced this action under the Employee Retirement Income Security Act ("ERISA") to recover benefits he claimed he was owed from Defendants Western and Southern Financial Group Flexible Benefits Plan and The Western and Southern Life Insurance Company (collectively "Defendants") for an experimental and investigative procedure on his second toe. Despite having been previously advised by Defendants repeatedly that the Plan required him to bring any lawsuit within six months after the Defendants' November 6, 2015 denial of his appeal, Plaintiff nonetheless waited ten months to file the present suit. Defendants moved to dismiss the Complaint. [Docket No. 8] The issue was fully and extensively briefed by the parties [Docket Dockets.Justia.com Nos. 13, 15, 18 and 19]. By Memorandum Opinion and Order entered on May 1, 2017, this Court sustained Defendants' motion dismissed Plaintiffs case against Defendants as time-barred. [Docket No. 27]. Plaintiff now asks the Court to revisit its decision. II. The standards for reconsideration are necessarily high. There are only three grounds upon which a district court may amend its judgment: ( l) to accommodate an intervening change in controlling laws; (2) to account for new evidence not available previously; and (3) to correct a clear error of law or to prevent manifest injustice. See Fed.R.Civ.P. 59(e); Henderson v. Walled Lake Consol. Selis., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Jn/era Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). A party may not utilize a Rule 59(e) motion to re-litigate issues the Court previously considered. See Tennessee v. Waters, Nos. 3: 10-CV-176, 3: 1O-CV-268, 201lWL540543, at *l (E.D. Tenn. Feb. 8, 2011) (slip copy) (citing Keweenaw Bay Indian Onty. v. United States, 940 F. Supp. 1139, 1141 (W.D. Mich. 1996)). Additionally, a party wishing to alter or amend a judgment may not "raise arguments which could, and should, have been made before judgment issued." See Sault Ste. Marie 7i'ibe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Motions for reconsideration likewise do not allow the losing party to attempt to supplement the record with previously available evidence. See Tolbert v. Potter, 206 F. App'x 416, 417-18 (6th Cir. 2006); Emmons v. lvlcLaughlin, 874 F.2d 351, 358 (6th Cir. 1989). 2 III. This Court finds that none of these reasons set forth in Rule 59(e) are presented by Plaintiff. He does not offer any new fact or law on which the Court may find reconsideration appropriate. Nor is there manifest injustice which must be corrected in this record. Indeed, the bulk of his motion is devoted to reiterating arguments previously raised, calling into question this Court's interpretation of the law and asserting that this Court's decision was incorrect. However, merely "claiming that the Court misinterpreted the applicable facts and law ... is not a basis to find a clear error oflaw or manifest injustice." Nayyar v. Mt. Carmel Health Sys., 2014 U.S. Dist. LEXIS 19916, *9-10 (S.D. Ohio Feb. 18, 2014); see also Settle-lv!uter Electric, Ltd. v. Siemens lndu.wy, Inc., 2016 U.S. Dist. LEXIS 127995, at *5 (S.D. Ohio Sept. 20, 2016). Plaintiff also raises two arguments heretofore not presented. First, he asks the Court to "address whether Article I gives Congress the power to prevent states from applying applicable civil laws to ERISA plans and whether § 1144 may permissibly be read to avoid unconstitutional events." Second, he argues that, hypothetically, if the Plan were only partially-funded, then a state stat11te of limitations should apply to his claims, rather than the limitations period provided in the Plan. Neither arguments is proper for reconsideration as they could have, and perhaps should have, been raised initially. This is a not the rare case where an intervening change in the law or newly discovered evidence forms the basis of a new legal the01y. Rather, Plaintiff seeks a second bite at the proverbial apple. A Ruic 59 motion is not an opportunity to reargue a case, but that is all that Plaintiff seeks to do. This is insufficient for this Court to disturb its original ruling. 3 IV. Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion to Reconsider [Docket No. 31] be OVERRULED. r:J/P This+ day of July, 2017. * '\ "'" '# 4 Signed By: tl1ll1l¥.B..JM/lholt•. .J.c, United States Ol111trl11t JudgG

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