United States District Court, D. South Carolina, Columbia Division
TERRY L. WOOTEN, Chief District Judge.
Before the Court are Taboo's Motion for Reconsideration, ECF No. 84, and Motion to Vacate Judgment, ECF No. 88. Regarding the motion for reconsideration, the City submitted a response in opposition. ECF No. 85. Regarding the motion to vacate judgment, the City submitted a response in opposition, ECF No. 89, and Taboo submitted a reply, ECF No. 92. These matters are now ripe for disposition.
I. Motion for Reconsideration
In Taboo's motion for reconsideration, it asks the Court to reconsider its order, ECF No. 82, granting the City's motion for summary judgment, ECF No. 25, and denying Taboo's motion for summary judgment, ECF No. 38.
A Rule 59(e) motion may only be granted "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice. It is an extraordinary remedy that should be applied sparingly." Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (citations omitted). "Rule 59(e) motions may not be used... to raise arguments which could have been raised prior to the issuance of the judgment, nor may they be used to argue a case under a novel legal theory that the party had the ability to address in the first instance." Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Taboo raises multiple grounds for reconsideration in its motion, which the Court will address in some detail.
The first ground asserted by Taboo is that the Court's grant of summary judgment was premature because additional discovery was needed. There is no merit to this ground. There was ample time for the parties to conduct discovery in this matter, abundant discovery was conducted, and, aside from Taboo's motion to compel, none of the discovery disputes referenced by Taboo were made ripe for the Court's disposition.
At the same time the City filed its summary judgment motion, the City, not Taboo, filed a motion to stay the entry of scheduling orders, and disclosure and conference requirements pending the Court's resolution of the summary judgment motion. ECF No. 26. As a result of the City's motion, the parties temporarily paused any discovery efforts, but then resumed their efforts after the Court did not immediately rule on the motion. See ECF No. 84-1 at 3 ("[B]oth sides refrained from discovery for a period of months, awaiting a decision from the Court on the City's request."). Absent an order granting the motion to stay, the parties would be expected to proceed with discovery, which they did. The Court's decision to wait to rule on the motion until the summary judgment motions were fully briefed and argued did not impede the parties from engaging in discovery as they saw fit during that time frame, which spanned nearly ten months. Again, abundant discovery was conducted in this case.
More than three months after filing its own summary judgment motion, Taboo filed a letter requesting a status conference with the Court to discuss the "muddiness" of the discovery in the case and referencing some of its discovery intentions. ECF No. 55. The Court did not schedule a status conference as matters were proceeding and no specific, concrete issue was before the Court that the parties were asking the Court to resolve. The Court allowed the parties to continue their discovery efforts. Each party had the opportunity, under the rules, to bring to the Court's attention via a properly-filed motion any specific discovery issues that needed resolution. If filed, the Court would have ruled on any such motion.
Taboo eventually brought a specific discovery issue to the Court's attention in a motion to compel that was filed late in the proceedings, many months after both parties had filed their own summary judgment motions and after nearly all briefing on these motions was complete. ECF No. 66. This motion to compel was limited to Taboo's written discovery request for several months of electronic communications from the City Council. See ECF No. 66-1 at 4. The only summary judgment-related brief filed after the motion to compel-Taboo's sur-reply, ECF No. 68, regarding the City's motion for summary judgment-was filed by Taboo only four days after it filed its motion to compel. Thus, there was no need for the Court to resolve the motion prior to ruling on the summary judgment motions. In the summary judgment order, the Court denied the motion to compel as untimely and on the merits. ECF No. 82 at 47-48. If the Court had immediately ruled on the motion to compel, rather than waiting until the summary judgment order, the resolution of the motion would have been the same and it would not have affected the Court's decision on the summary judgment motions.
Furthermore, Rule 56(d) provides a mechanism for a party to inform the Court that additional discovery is needed to respond to summary judgment, which Taboo did not utilize. Specifically, the party is to file an affidavit or declaration under penalty of perjury stating that, for specified reasons, the party cannot adequately respond to the summary judgment motion. Fed.R.Civ.P. 56(d). Taboo filed no such affidavit or declaration, and its motion for reconsideration on this ground is therefore barred. See, e.g., Tsai v. Md. Aviation, 306 F.Appx. 1, 5 (4th Cir. 2008) ("[I]f [the plaintiff's] attorney thought he needed additional discovery, he could have moved under Rule 56(f), which permits the court to order additional discovery where a party lacks sufficient facts to oppose a motion for summary judgment. He failed to make such a motion, and in doing so has waived any argument for additional discovery." (internal citation omitted)); Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) ("We, like other reviewing courts, place great weight on the Rule 56(f) affidavit, believing that a party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit." (internal quotation omitted)); Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995) ("Although [the plaintiff] cites numerous aspects of discovery that he believes were not properly completed at the time of the district court's decision on appeal, [the defendant] correctly points out that [the plaintiff] failed to file an affidavit with the district court specifying which aspects of discovery required more time to complete. As we have previously held, a party may not simply assert in its brief that discovery was necessary and thereby overturn summary judgment when it failed to comply with the requirement of Rule 56(f) to set out reasons for the need for discovery in an affidavit." (internal quotation omitted)).
B. Mayor's email
Taboo next references a recently-uncovered email from the City's mayor in which he says he "hope[s] to push for a change in our 13 year old insufficient approach to zoning, but I also plan to oppose and fight the opening of THIS business, " presumably referring to Taboo. ECF No. 84-1 at 18 n.5. As an initial matter, this email has been brought to the attention of the Court for the first time in this motion to reconsider, even though it was discoverable either through a properly-tailored discovery request or Freedom of Information Act request well before the Court's grant of summary judgment. Furthermore, as discussed in detail in the summary judgment order, courts will not strike ...