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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 NORTHERN DIVISION 

ROBERT LEE and ) 

LEE=S LOUNGE, INC, ) 

 ) 

Plaintiffs, ) 

 ) 

v. ) CIVIL ACTION NO. 2:09-0301-KD-N 

 ) 

CITY OF MARION, ALABAMA, ) 

 ) 

Defendant. )

ORDER 

 This action is before the Court on the motion to reconsider partial denial of the motion for 

summary judgment filed by defendant City of Marion, Alabama (doc. 33). Upon consideration, 

and for the reasons set forth herein, the City’s motion for reconsideration is DENIED. 

AIn the interests of finality and conservation of scarce judicial resources, reconsideration of 

an order is an extraordinary remedy and is employed sparingly.@ Gougler v. Sirius Products, Inc., 

370 F.Supp.2d 1185, 1189 (S.D. Ala. 2005); see also United States v. Bailey, 288 F.Supp.2d 1261, 

1267 (M.D. Fla. 2003) (aff=d 419 F. 3d 1208 (11th Cir. 2005)). “[A]dditional facts and arguments 

that should have been raised in the first instance are not appropriate grounds for a motion for 

reconsideration.@ Gougler, 370 F.Supp.2d at 1189. Also, the Eleventh Circuit has explained that 

Aa motion to reconsider should not be used by the parties to set forth new theories of law.@ Mays 

v. United States Postal Service, 122 F.3d 43, 46 (11th Cir. 1997) 

AAs a general rule, a motion to reconsider is only available in the following limited 

circumstances: (1) when a party presents the court with evidence of an intervening change in 

controlling law; (2) the availability of new evidence, or (3) the need to correct clear error or 

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manifest injustice.@ Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350, 1355 

(M.D. Ala. 2003); Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 

(7th Cir. 1996) (AMotions for reconsideration serve a limited function: to correct manifest errors of 

law or fact or to present newly discovered evidence.@). 

 Previously, in the order on summary judgment, the Court found that “[n]either party has 

submitted sufficiently clear evidence or argument from which this Court can make a determination 

on the viability of the equal protection claim” and carried the claim to trial. The City moves the 

Court to reconsider this decision. The City does not present any new evidence or evidence of an 

intervening change in controlling law. Therefore, the City’s only possible argument is that the 

Court should reconsider its order and correct clear error or manifest injustice. 

 In regard to Equal Protection under the United States Constitution, the City argues that 

since plaintiffs did not present any applicants who were identical but treated differently, i.e., a 

comparator, they have not met their burden to establish their prima facie case. The City argues 

again that Mamie Booker is not an adequate comparator and points out various facts surrounding 

the award of her liquor license which distinguish her liquor license application from that of 

plaintiffs.1 The City also argues again that Jeffrey Tubbs’ application was denied by the same 

Council and Mayor who considered plaintiffs’ application. The City also points out again that 

there are no liquor lounges in the City’s Central Business District, and thus, plaintiffs have no 

comparators. 

 However, this same argument was presented to the Court on motion for summary 

 

1 The City points out that a different Mayor and Council considered plaintiffs’ application, that fire code violations 

were an issue, that Booker was required to hire an architect, and that the City may have improperly considered 

Booker’s application since it was not on the agenda and the City Attorney was not present. The City points out that 

parking was not the only concern regarding plaintiffs’ application and that excessive noise or violence, traffic 

congestion because of limited parking, and Lee’s past history were also considered. 

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judgment. Presenting the same argument on motion for reconsideration as submitted in support 

of the motion for summary judgment does not provide the Court with any evidence or argument 

that it has committed clear error or that its decision was manifestly unjust. 

 The City also argues that the Alabama Constitution does not contain a guarantee of Equal 

Protection, and therefore, plaintiffs’ right to Equal Protection could not have been violated. Thus, 

it appears the City argues that the Court committed clear error by finding that a right to Equal 

Protection exists under the Alabama Constitution and that any claim based thereon should have 

been dismissed. However, the cases cited by the City indicate that there is a debate among jurists 

on this issue. Since jurists debate the issue, there is no clear error.2 

DONE and ORDERED this the June 15, 2010. 

 s / Kristi K DuBose 

KRISTI K. DuBOSE 

UNITED STATES DISTRICT JUDGE

 

2 The City cites Marsh v. Green, 782 So. 2d 223, 236, n.3 (Ala. 2000) (J. Cook, concurring in part and dissenting in 

part) (“In mentioning the equal-protection guarantee of the Alabama Constitution, I have not overlooked Ex parte 

Melof, 735 So.2d 1172 (Ala.1999), which purports to hold that there is no such guarantee in the Alabama Constitution. 

I point out, however, that in special writings, no fewer than 5 of the 8 Justices participating in that decision expressed 

either their disagreement with, or no opinion as to, that proposition. See, e.g., 735 So.2d at 1194 ("Although the main 

opinion correctly states that there is no single, express equal-protection provision in the Constitution of Alabama ..., I 

do not believe it follows that there can be no claim of denial of equal protection cognizable under the Constitution of 

Alabama") ) (citations omitted). 

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