IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ELBERT SMITH, JR. and )

THERESA SMITH, )

)

Plaintiffs, )

)

v. ) CIVIL ACTION NO.

) 05-0331-BH-B

SCALES EXPRESS, INC., )

)

Defendant. )

ORDER

This action is before the Court on defendant’s motion (Doc. 89) to reconsider the

Court’s order denying summary judgment which is asserted pursuant to Fed.R.Civ.P.

60(b). In response to defendant’s motion, plaintiffs have filed a motion to strike(Doc. 91)

which is predicated upon the failure of the defendant, Scales Express, Inc. (“Scales”), to

establish entitlement to the relief it seeks under Fed.R.Civ.P. 60(b). Upon consideration

of the aforementioned motions and all other pertinent portions of the record, the Court

concludes and it is therefore ORDERED that plaintiffs’ motion to strike is due to be and

is hereby GRANTED for the reasons stated therein and defendant’s motion to reconsider

is thus due to be and is hereby STRIKEN. 

The Court agrees that the defendant, Scales, has failed to establish entitlement to

the relief it seeks under Fed.R.Civ.P. 60(b). See e.g., Williams v. North Florida Regional

Med. Center, Inc., 164 Fed.Appx. 896, 898 (11th Cir. 2006)(“The Rule 60(b) movant

cannot prevail simply because the district court could have vacated its order; instead the

appellant must ‘demonstrate a justification so compelling that the court was required to

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Scales continues to rely on Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir.

2002), and Chandler v. Samford University, 35 F.Supp.2d 861 (N.D. Ala. 1999).

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In any event, Scales’ assertion that “this Court’s failure to follow the Burnes and

Chandler decisions is a clear manifest error of law and Fact” (Motion to Reconsider at 3) is

specious. It ignore the fact that neither the Burnes nor the Chandler courts addressed, the

relevant applicability of 11 U.S.C. § 348(f)(1), which was addressed in the well reasoned opinion

in Farmer v. Taco Bell Corp., 242 B.R. 435 (W.D. Tenn. 1999), and adopted by this Court. This

Court will not speculate as to why the applicability of § 348(f)(1) was not presented to or

addressed by either the Burnes or the Chandler courts. This Court did not, therefore, err in

denying defendant’s motion for summary judgment, manifestly or otherwise.

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vacate its order’.”). Scales is merely attempting to assert arguments related to cases1 on

which it previously relied, that do not contain any intervening change in controlling law

or “newly discovered” evidence, and that should have been raised in either its motion for

summary judgment or reply briefs.2

 Williams, supra, 164 Fed.Appx. at 899 (“relief under

60(b)(6) is an ‘extraordinary remedy’ which may be invoked only upon a showing of

exceptional circumstances.”); Enwonwu v. Trans Union, LLC, 164 Fed. Appx. 914, 919

(11th Cir. 2006)(“[f]ederal courts grant relief under Rule 60(b)(6) only for extraordinary

circumstances.”). See also, Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th

Cir. 1986)(“[a]lthough the defendants attempted to raise the argument in their motion for

reconsideration, a motion for reconsideration is an improper vehicle to introduce evidence

previously available or to tender new legal theories.”). 

DONE this 7th day of September, 2006.

 s/ W. B. Hand 

SENIOR DISTRICT JUDGE

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