Risher v. United States of America, No. 2:2008cv02249 - Document 81 (W.D. Tenn. 2011)
Court Description: ORDER DENYING 77 Motion for New Trial. Signed by Judge Samuel H. Mays, Jr., on 4/28/2011. (Mays, Samuel)
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Risher v. United States of America Doc. 81 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ) ) ) ) ) ) ) ) ) RICHARD CARLTON RISHER, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. No. 08-2249 ORDER DENYING MOTION FOR NEW TRIAL OR ALTERATION OR AMENDMENT OF JUDGMENT Before the Court is the February 2, 2011 Motion for a New Trial, Altering or Amending Judgment (“Motion”) Plaintiff Richard Carlton Risher (“Risher”). filed by (Mot. for a New Trial, Altering or Amending J., ECF No. 77.) (“Pl.’s Mot.”) Defendant United States of America (the “Government”) responded in opposition on February 4, 2011. (Def.’s Resp. Opposing Pl.’s Mot. for New Trial or Alteration of J., ECF No. 78) Resp.”) Risher replied on March 8, 2011. Def.’s Resp., ECF No. 80.) (“Def.’s (See Pl.’s Resp. to (“Pl.’s Reply”) Under Federal Rule of Civil Procedure 59(a)(1)(B), a court may grant a new trial “after a nonjury trial, for any reason for which a rehearing has heretofore equity in federal court.” been granted in a suit Fed. R. Civ. P. 59(a)(1)(B). in “To constitute proper grounds for granting a new trial, an error, Dockets.Justia.com defect or other act must affect the substantial rights of the Walker v. Bain, 257 F.3d 660, 670 (6th Cir. 2001) parties.” (citing Fed. R. Civ. P. 61); see also 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2805 (2d ed. 2010) (“Thus it is only those errors that have caused substantial harm to the losing party that justify a new trial. Those errors that are not prejudicial do not call for relief under Rule 59.”). “That is to say, a trial court should be most reluctant to set aside that which it has previously decided unless convinced that it was based on a mistake of fact or clear error of law, or that refusal to revisit the earlier decision would work a manifest injustice.” LiButti v. United States, 178 F.3d 114, 118 (2d Cir. 1999) (citing Arizona v. California, 460 U.S. 605, 618 n.8 (1983)); see also Wright, Miller & Kane, supra, at § 2804 (“A motion for a new trial in a nonjury case or a petition for rehearing should be based upon manifest error of law or mistake of fact, and a judgment should not be set aside except for substantial reasons.”). “Certainly, a trial court should not grant a new trial simply because, like the proverbial second chance.” not better apple, case the demonstrated if losing afforded party LiButti, 178 F.3d at 118-19. has a the it Risher present at believes Here, can bite that the another Court’s Memorandum Opinion and Order contained any mistakes of fact or 2 errors of law. evidence He argues that the Court should have weighed the differently. (See Pl.’s Mot. 1-4.) In doing so, Risher presents the same argument that this Court has already (See id.) considered and rejected. For the reasons discussed in the Memorandum Opinion and Order, the Court’s findings of fact and conclusions of law remain the same. (See Mem. Op. and Order, ECF No. 75.) Based on his demeanor while testifying, contradictions and within implausible statements during his testimony, and evidence suggesting that Risher had not told the truth in the past,1 Risher was not a credible witness at trial. The Court declines to accept his version of the facts. Risher’s criticisms of several of his attorney’s trial decisions, such as not to call a witness or contact a safety expert, are also insufficient to justify a new trial. Pl.’s Mot. 2; Pl.’s Reply 3.) As the Second Circuit (See has suggested, Risher’s belief that he could present a better case if afforded a new trial is not sufficient to grant a new trial. See LiButti, 178 F.3d at 118-19. Even if Risher’s attorney had not made the decisions Risher criticizes, Risher would have lost because he was at least fifty percent responsible for his fall, 1 For example, a physician who examined Risher in 2002 concluded that Risher exaggerated his symptoms and had “a tendency to give away intentionally on muscle testing in the right foot.” (Trial Ex. 25, at 1-2; see Trial Ex. 26, at 1 (stating that “[t]he clinical picture is one of magnification and exaggeration of his symptoms”).) A video shown at trial showing Risher using exercise equipment also impeached Risher’s testimony about his physical limitations. 3 it was not foreseeable that he would attempt to cross the hole where he did rather than take a safe path at the hole’s corner or seek assistance from an officer standing nearby, and he offered no evidence from a medical expert who was “reasonably certain” about the cause of his medical condition. Op. and Order 12-21.) (See Mem. Each reason is independently sufficient to defeat Risher’s action. (See id.) Risher argues that he is disabled under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., and that manifest injustice has occurred because the Court (See Pl.’s Reply 1-2.) standard of review. applied the wrong The Court applied the correct standard of review, as discussed in the Memorandum Opinion and Order. to Risher, Even if the Government had breached its duty Risher’s claim would fail because of Tennessee’s modified comparative fault rule and Risher’s lack of evidence on medical causation. (See Mem. Op. and Order 12-15, 17-21.) The Court’s findings of fact and conclusions of law remain the same. Risher has not demonstrated that any proper grounds for granting a new trial exist. any error occurred affecting Walker, 257 F.3d at 670. He has not demonstrated that his substantial rights. See The Court’s Memorandum Opinion and Order was not based on a mistake of fact or clear error of law, and refusal to revisit the earlier decision would not work a manifest injustice. LiButti, 178 F.3d at 118. 4 No substantial reason exists to set aside the earlier decision. Risher’s motion for a new trial is DENIED. Under Federal Rule of Civil Procedure 59(e), “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e). “To grant a motion filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, there must be ‘(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.’” Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009) (quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006)). “The Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that judgment.” could have been raised prior to the entry of Wright, Miller & Kane, supra, at § 2810.1; accord Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008). “A motion under Rule 59(e) is not an opportunity to re-argue a case.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (citation omitted). Here, Risher has not demonstrated that the Court made a clear error of law, offered newly discovered evidence, or argued that an intervening Alteration or action the on change amendment merits is in of controlling the not necessary 5 judgment law has dismissing to prevent occurred. Risher’s manifest injustice. Risher’s Motion seeks to relitigate old matters by presenting arguments that this Court has already considered and rejected in its Memorandum Opinion and Order. demonstrated that alteration or amendment dismissing his action would be appropriate. at 474. Risher has not of the judgment See Betts, 558 F.3d Therefore, Risher’s motion for alteration or amendment of the judgment is DENIED. So ordered this 28th day of April, 2011. s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR UNITED STATES DISTRICT JUDGE 6
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