Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:04-cv—01297-SLR Document 40 Filed 11/17/2006 Page1 014
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LUCILLE GREENE, )
Plaintiff, g
v. g Civ. No. 04-1297-SLR
UNITED STATES POSTAL SERVICE, g
Defendant. Q
MEMORANDUM ORDER
At Wilmington this 17th day of November, 2006, having
reviewed defendant's motion to alter or amend judgment under
Federal Rule of Civil Procedure 59(e) and plaintiff’s response
thereto;
IT IS ORDERED that said motion (D.I. 38) is granted in part
and denied in part, for the reasons that follow:
1. Rule 59(e) “permits the filing of a motion to alter or
amend a judgment. A motion under Rule 59(e) is a ‘device to
relitigate the original issue' decided by the district court, and
used to allege legal error.” United States v. Fiorelli, 337 F.3d
282, 288 (3d Cir. 2003) (citations omitted).
2. Instantly, defendant does not ask the court to amend the
actual judgment rendered in defendant's favor; rather, defendant
asserts in its motion that the court’s findings of fact were in

Case 1:04-cv—01297-SLR Document 40 Filed 11/17/2006 Page 2 of 4
error in three respects: (a) Whether defendant has apologized to
plaintiff; (b) Whether defendant attempted to resolve the case
informally; and (c) Whether the USPS's reputation was
characterized correctly by the court.
3. Rule 52(b) of the Federal Rules of Civil Procedure
specifically provides for a motion to amend the court's findings
of fact and is the more appropriate procedural tool to employ
under these circumstances. Because defendant filed its Rule
59(e) motion within the ten day time limit required by both Rule
52(b) and Rule 59(e), the court will construe the instant motion
as one filed under Rule 52(b). See Boone v. United States, 743
F. Supp. 1367, 1370 (D. Ha. 1990)I éiiid, 944 F.2d 1489 (9th Cir.
1991). The decision to grant or deny a motion to amend or
enlarge the findings is within the discretion of the trial court.
gg; 9 Moore's Federal Practice (Civil) § 52.60[2] (3d ed. 2006)
(citing West Cent. Coop. v. United States, 607 F. Supp. 1, 3-4
(N.D. Iowa 1983), aff;Q, 758 F.2d 1269 (8m Cir. 1985); United
States v. Anderson, 591 F. Supp. 1, 4 (E.D. Wash. 1982)).
4. With respect to the first finding of fact in dispute,
the court acknowledges that Ms. Ward expressed her “concern" that
plaintiff had fallen in the parking lot and her intention to
“conduct a good investigation, a thorough investigation.” (D.I.
38 at A6) Ms. Ward also testified that she “was sorry that
[plaintiff] had become upset and hurt herself.” (LQ; at A7)
2

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However, Ms. Ward admitted that she never apologized for the
conduct of Mr. Maurer. (Id.) Mr. Maurer's testimony is less
clear. He testified as follows;
Well, Karen [Ward] told me that she received a
complaint on me and asked me to write up a
statement of what happened at that time.
I wrote up a statement, stating that it was ——
actually, it was a busy day. A lady came in,
gave me a package that had ORM-D on it.
I pointed the package out to the individual and
pointed to a poster that has, about the mailability,
not accepting of reused boxes, and the individual
stated that she was blind.
At that time I said, I’m sorry, crossed out the
ORM—D on the package to be shipped.
(Id. at A8) As the finder of fact, it was the court’s
responsibility to judge the credibility of the witnesses. It is
not clear whether Mr. Maurer apologized at alll or for what. The
court declines to amend its findings of fact in this regard.
5. The second area of dispute goes to the efforts made by
defendant to informally resolve this case. The record indicates
that during the first conversation between plaintiff and Ms.
Ward, after plaintiff had explained what had happened, Ms. Ward
indicated that she was “sending a man over to sign some papers.”
(Id. at A1) At that point, plaintiff declared her intention to
1The court notes that this testimony is once removed from
eyewitness testimony, as Mr. Maurer was testifying about what he
wrote in his official statement to the USPS, not specifically
about what he did on the day in question.
3

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have a lawyer “with [her]” (id.) and a formal claim was filed
months later.2 The record does not reflect what efforts
defendant made to resolve this case informally over the ensuing
years. Therefore, the court declines to amend its findings of
fact in this regard.
6. The last finding in dispute relates to the court's
characterization of defendant’s reputation. The court will
revise this language in an amended opinion.
United Statgs District Judge
2The incident at issue occurred on December 17, 2002; the
claim was filed on October 3, 2003. (Id. at A9)
4