United States District Court, S.D. Ohio, Eastern Division
G. RALPH ELLIOT, Plaintiff,
FIRST FEDERAL COMMUNITY BANK OF BUCYRUS, Defendant.
Deavers Magistrate Judge.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiff's Motion to
Reconsider or a Motion to Amend and Motion for Stay of
Foreclosure. (ECF No. 86). For the reasons set forth below,
Plaintiff's Motion to Reconsider is
DENIED and the Motion for Stay of
Foreclosure is GRANTED.
facts of this case are outlined in this Court's prior
Opinion & Order granting summary judgment to Defendant
(ECF No. 86) and are restated here only briefly and
incorporated by reference. Plaintiff brought this suit
alleging a violation of the Truth in Lending Act (TILA), 15
U.S.C. § 1639c, § 1640, and common law negligence.
Plaintiff alleged the refinanced mortgage he received from
the defendant bank violated TILA and that the bank behaved
negligently. This Court granted summary judgment for
Defendant because there was no genuine dispute of the
material facts surrounding the mortgage refinancing.
LAW & ANALYSIS
Motion to Reconsider
Federal Rule of Civil Procedure 59(e), a court will
reconsider its own prior decision “if the moving party
demonstrates: (1) a clear error of law; (2) newly discovered
evidence that was not previously available to the parties; or
(3) an intervening change in controlling law.”
Owner-Operator Indep. Drivers Ass'n, Inc. v. Arctic
Express, Inc., 288 F.Supp.2d 895, 900 (S.D. Ohio 2003).
Courts may also alter or amend a judgment when necessary
“to prevent manifest injustice.” GenCorp.,
Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834
(6th Cir. 1999). Reconsideration due to a finding of manifest
injustice or a clear error of law requires “unique
circumstances, ” such as complete failure to address an
issue or claim. McWhorter v. ELSEA, Inc., 2006 WL
3483964, at *2 (S.D. Ohio 2006) (citing Collison v.
Int'l Chem. Workers Union, Local 217, 34 F.3d 233,
236 (4th Cir. 1994)). Even for motions to reconsider
interlocutory orders, courts respect the importance of
“grant[ing] some measure of finality ... and [of]
discourag[ing] the filing of endless motions for
reconsideration” in applying the relevant criteria.
Id. A motion under Rule 59(e) may not be brought to
relitigate issues previously considered by a court or to
present evidence that could have been raised earlier. See
J.P. v. Taft, 2006 WL 689091, at *3 (S.D. Ohio 2006).
has failed to demonstrate that his claim should be
reconsidered by this Court. (ECF No. 86). Plaintiff's
brief is a twenty-page recital of the claims that this Court
already decided in its Order & Opinion granting
Defendant's Motion for Summary Judgment. (ECF No. 81).
Plaintiff fixates on facts that are not relevant. For
example, he complains that this Court miscounts and describes
the period between the 2013 loan and the 2014 refinance as
being “eighteen” months when it was
“fifteen.” (ECF No. 86 at 5-6). He also complains
that this Court “overlooks the evidence that the
“Elliot Team” was more than a small two-person
operation. It included a 25-agent franchise in Marysville and
a 225-agent franchise in Dublin.” (Id. at 5).
While this Court is willing to correct the record to indicate
that the time elapsed was fifteen months, neither of these
facts is relevant and neither supports Plaintiff's Motion
for Reconsideration. See Fed. R. Civ. P. 56(a)
(requiring the movant to demonstrate “that there is no
genuine issue as to any material fact”)
does not present any argument to meet the requirements of
Rule 59(e): Plaintiff has not demonstrated that this Court
made a clear error of law; he has not brought to this
Court's attention any newly discovered evidence that was
previously unavailable; and he does not argue that there has
been an intervening change in controlling law.
Reconsideration under Rule 59(e) does not serve as a means to
merely relitigate issues already considered. As a result,
Plaintiff's Motion to Reconsider is
Stay Pending Appeal
determining whether a stay pending appeal should be granted,
the factors regulating the issuance of a stay are: (1) the
likelihood that the party seeking the stay will prevail on
the merits of the appeal; (2) the likelihood that the moving
party will be irreparably harmed absent a stay; (3) the
prospect that others will be harmed if the court grants the
stay; and (4) the public interest in granting the stay.
Ohio ex rel. Celebrezze v. Nuclear Regulatory
Comm'n, 812 F.2d 288, 290 (6th Cir. 1987); see
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113
(1987).A motion for stay pending appeal is
generally made after the district court has considered fully
the merits of the underlying action and issued judgement.
Michigan Coalition of Radioactive Material Users, Inc. v.
Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). As a
result, a party seeking stay must ordinarily demonstrate to a
reviewing court that there is a likelihood of reversal.
(Id). Further, these factors are not prerequisites,
but factors to be balanced. Ohio ex rel. Celebrezze.
812 F.2d at 290 (citing In re DeLorean Motor Co.,
755 F.2d 1223, 1229 (6th Cir. 1985)).
first two factors hold the most importance in determining
whether to grant a stay. United States v. Ahmed, No.
2:12-cv-951, 2017 WL 6508179 (S.D. Ohio Oct. 31, 2017)
(citing Ohio State Conference of NAACP v. Husted,
769 F.3d 385, 387 (6th Cir. 2014)). A movant does not always
“need to establish a high probability of success on the
merits” to satisfy the first factor.
Celebrezze, 812 F.2d at 290 (citing Cuomo v.
United States Nuclear Regulatory Comm'n, 772 F.2d
972, 974 (D.C. Cir. 1985)) (indicating “the probability
of success that must be shown is inversely proportional to
the degree of irreparable injury the plaintiffs will suffer
absent an injunction.”). But the moving party must
demonstrate more than a mere possibility of success.
Celebrezze, 812 F.2d at 290.
of potential harm if the stay is granted relies on three
factors: “(1) the substantiality of the injury alleged,
(2) the likelihood or its occurrence, and (3) the adequacy of
the proof provided.” Celebrezze, 812 F.2d at
290 (citing Cuomo, 772 F.2d at 977). Irreparable
harm that is “certain and immediate” is key and
“mere injuries, however substantial, in terms of money,
time and energy necessarily ...