Jarvis v. Enterprise Fleet Services and Leasing Company, No. 8:2007cv03385 - Document 212 (D. Md. 2010)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 5/11/10 sat). Signed by Chief Judge Deborah K. Chasanow on 5/11/10. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : DEREK JARVIS : v. : Civil Action No. DKC 07-3385 : ENTERPRISE FLEET SERVICES AND LEASING COMPANY : MEMORANDUM OPINION Pending before the court are motions filed by Plaintiff Derek Jarvis for reconsideration (paper 204), for leave to appeal in forma pauperis (paper 209), and for transcripts to be provided at government expense (paper 208). The issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiff s motions will be denied. I. Background On March 17, 2010, this court separately issued a memorandum opinion and order denying numerous motions filed by Plaintiff, granting Enterprise Fleet summary Services judgment and Leasing in favor Company, of and Defendant entering judgment for Defendant in the amount of $2,112.89, representing an award of attorneys fees incurred by Defendant in litigating a prior motion. (Paper 203). On March 22, 2010, Plaintiff moved for reconsideration of the court s order granting summary judgment and entering a monetary judgment in favor of Defendant, citing manifest errors of law or fact and the need to correct a clear error of law or prevent a manifest injustice. 204, at 2). (Paper On April 8, 2010, Plaintiff concomitantly filed a motion for trial transcripts at government expense (paper 208), a motion and supporting affidavit for leave to appeal in forma pauperis (paper 209), and a notice of appeal (paper 210). II. Motion for Reconsideration A. Standard of Review Plaintiff s motion for reconsideration is brought pursuant to Fed.R.Civ.P. 59(e). Courts have recognized three limited grounds for granting a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e): (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct clear error of law or prevent manifest injustice. See United States ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d 284, 290 (4th Cir. 2002) (citing Pacific Ins. Co. v. Am. Nat l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)), cert. denied, 538 U.S. 1012 (2003). A motion to reconsider is not a license to argue the merits or present new evidence. RGI, Inc. v. Unified Indus., Inc., 963 F.2d 658, 662 (4th Cir. 1992). an extraordinary remedy which should Pacific Ins. Co., 148 F.3d at 403. 2 To the contrary, it is be used sparingly, B. Analysis In considering Defendant s motion for summary judgment, the court prefaced its analysis by noting that there was considerable disparity in the quality of the evidence submitted by the parties. (Paper 202, at 39). The court observed that [w]hile Enterprise has presented voluminous records, deposition excepts, and a number of declarations of relevant witnesses in support of its claims, Plaintiff relies principally upon his own affidavits, (Id.). which were problematic in several respects. Initially, the court noted, Plaintiff s self-described affidavits are unsworn and do not include the language required by 28 U.S.C. § 1746 for unsworn declarations. court then continued, problems with purported affidavits conclusory allegations evidence, that [personnel records observing declarations Plaintiff s he of grouped for these other submission, largely, that several if are various such not as by The evidentiary that exclusively, unsupported together (Id.). any his assert other and improperly labeled Enterprise employees] as employees, and that he failed the to explain the relevance of many of [these] exhibits and, in many cases, it is unclear how they support the proposition for which they appear to be cited. (Id. at 40, n. 9). 3 In moving for reconsideration, Plaintiff argues that the court appears to [have based] its entire Order/Opinion on its finding that his affidavits were defective, contending that they absolutely constitute[] . . . sworn statement[s], and requests that it immediately vacate its erroneous and flawed opinion/order to the contrary. (Paper 204, at 1). While Plaintiff fails to cite any legal support for his argument, he asserts that the language he used to certify his affidavits was consistent with the language used in an affidavit . . . under penalty of perjury. (Id. at 13). Plaintiff s argument is unpersuasive in several respects. First, as the court explained in its memorandum opinion, the documents that Plaintiff purported to be affidavits clearly were not. An affidavit is a statement reduced to writing and the truth of which is sworn to before someone who is authorized to administer an oath. Farm Bureau Mut. Auto Ins. Co. v. Hammer, 83 F.Supp. 383, 386 (D.W.D.), rev d on other grounds, 177 F.2d 793 (4th Cir. 1949). The documents submitted by Plaintiff did not purport to sworn to before someone who is authorized to administer an oath ; thus, they were not true affidavits. Secondly, Plaintiff s submissions did not contain the requisite language to qualify as unsworn declarations under penalty of perjury, pursuant to 28 U.S.C. § 1746. That statute provides that where a party declares under penalty of perjury 4 that the foregoing is true and correct, or the substantial equivalent, its affidavit. following statements Plaintiff s language: may two I be submitted affidavits Hereby Certify in lieu concluded that the of with an the foregoing statements made by me are True and Correct, I am aware that if any of the foregoing statements made by me are willfully false, I am subject to perjury. (Paper 192, Ex. 2, at 23; see also Paper 195, Ex. 1, at 15). the contrary, language set Despite Plaintiff s apparent claim to this is not the equivalent forth in 28 U.S.C. § 1746; of the thus, suggested Plaintiff s affidavits could not qualify as unsworn declarations.1 this technical affidavits, the issue the court only would not Plaintiff to amend his affidavits. problem have with Were Plaintiff s hesitated to permit As the court observed in its memorandum opinion, however, this was only the initial problem. Plaintiff s allegations affidavits unsupported by also any consisted other largely evidence. of bald Under those circumstances, permitting Plaintiff to amend his affidavits would have served no legitimate purpose. 1 While Plaintiff complains that the court did not find similar fault with Defendant s unsworn declarations, each of Defendant s declarations were properly prefaced with language establishing that the declarant declare[s] under the penalties of perjury that the following is true and correct. (See, e.g., Paper 190, Ex. 1). This language largely mirrored the example set forth in 28 U.S.C. § 1746. 5 While Plaintiff presents a number of additional arguments in support of his position that the court must correct manifest errors of law or fact (paper 204, at 2) with respect to its prior decision, these arguments essentially seek to have the court change its mind, which is not the function of a Rule 59(e) motion, Frall Developers, Inc. v. Board of County Com rs for Frederick County, Civ. No. CCB-07-2731, 2010 WL 672847, at *1 (D.Md. Feb. 22, 2010). motion is To the extent that Plaintiff s rambling comprehensible, intervening change in the he has law, failed newly to developed identify any evidence, or clear error of law or manifest injustice that would cause this court to alter its prior opinion. Accordingly, Plaintiff s motion for reconsideration will be denied. III. Motions for Trial Transcripts at Leave to Appeal In Forma Pauperis Government Expense and As the court stated previously (paper 168), it has already granted Plaintiff s prior motions for in forma pauperis status (papers 100, 119), and need not do so again. Thus, Plaintiff s motion for leave to appeal in forma pauperis (paper 209) will be denied as unnecessary. Plaintiff additionally requests, pursuant to 28 U.S.C. § 753(f), that the government be charged the cost of reproducing copies of a hearing before Judge Day for purposes of his appeal. (Paper 208). An appellant proceeding 6 on appeal in forma pauperis is entitled to transcripts at government expense only if the trial judge or a circuit judge certifies that the appeal is not frivolous but presents a substantial question. Cheris v. Washington Metropolitan Area Transit Authority, 351 Fed.Appx. 792, 793 (4th Cir. 2009) (unpublished). For the reasons stated in the memorandum opinion, this court cannot make the requisite certification here.2 Accordingly, Plaintiff s motion for free transcripts will be denied. IV. Conclusion For the foregoing reasons, Plaintiff s motions for reconsideration, for trial transcripts at government expense, and to appeal in forma pauperis will be denied. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 2 Notably, Plaintiff apparently seeks this transcript in connection with this court s denial of his motion for reconsideration of a prior order issued by Judge Day. Plaintiff, however, has already appealed the underlying order (paper 178), and that appeal was dismissed by the Fourth Circuit on December 23, 2009 (paper 196). 7
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