OPINION
Before the Court is a motion for reconsideration filed by Defendants Richard Holcomb, Joseph Hill, and Jeannie Thorpe. (Dkt. 152). On January 7, 2016,1 entered a memorandum opinion on the parties’ motions for summary judgment that (1) agreed with Defendants that Plaintiffs Title VII retaliatory termination claim should be dismissed, (2) found that judgment in favor of Plaintiff was proper on the issue of liability for her procedural due process claim under 42 U.S.C. § 1983(3) rejected Defendants’ qualified immunity defense, and (4) concluded liability against Defendants Holcomb and Hill was established on Plaintiffs supervisory liability claim. (Dkt. 140, available at
At first blush, Defendants’ motion and brief seek reconsideration only of my grant of Plaintiffs motion for partial summary judgment, which sought judgment on the due process and supervisory liability claims. (Dkt. 152; dkt. 153 at 1; see also dkt. 158 (Defs Reply Br.) at 1). But they actually seek more than the advancement of these adversely-decided claims to trial. Their opening brief argues Defendants are entitled to qualified immunity on the due process claim, hence seeking reconsideration of not only the grant of Plaintiffs summary judgment motion but also the denial of their own. Likewise, they reassert their entitlement to summary judgment on Plaintiffs supervisory liability claim. Defendants thus challenge all but the first of the four aforementioned conclusions and consequently ask the Court to revisit the denial of their motion for summary judgment.
I. PROPRIETY OF THE MOTION FOR RECONSIDERATION
Before considering Defendants’ arguments in support of reconsideration, the
In a widely-cited passage, the Eastern District of Virginia has explained that reconsideration is:
appropriate where, for example, the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court. Such problems rarely arise and the motion to reconsider should be equally rare.
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,
Critically here, reconsideration is not meant to re-litigate issues already decided, provide a party the chance to craft new or improved legal positions, highlight previously-available facts, or otherwise award a proverbial “second bite at the apple” to a dissatisfied litigant. It is “inappropriate where it merely reiterates previous arguments.” Univ. of Va. Patent Found v. Gen. Elec. Co.,
The reconsideration brief itself (dkt. 153) is a dense 25 pages, over twice as long as Defendants’ opposition brief to Plaintiffs motion for summary judgment and nearly as long as their brief in support of their own summary judgment motion. (Dkt. 95 at 1-11; dkt. 87 at 1-31). The organization of Defendants’ reconsideration brief further reveals its nature: It contains a twelve-page statement of “material facts,” plus another three-page “summation of critical facts in the light most favorable to Defendants.” (Dkt. 153 at 2-14, 15-18). Defendants’ opposition to Plaintiffs original summary judgment motion— the place one would expect Defendants to have articulated the “critical facts in the light most favorable” to them — contains only a six-paragraph statement of facts. (Dkt. 95 at 2-5). The statement of facts from their moving summary judgment brief, a mere eight pages, is likewise substantially less fulsome than that of their reconsideration brief. (Dkt. 89 at 1-8). In other words, Defendants devoted as much or more attention and effort to developing the facts on reconsideration as they did on the parties’ motions for summary judgment. Indeed, Defendants admitted at the March 3, 2016 oral argument that they “stated [the] facts far better” in their reconsideration brief than in their summary judgment briefs.
If the length and density of the reconsideration brief suggest Defendants seek a mulligan on their summary judgment briefing, a granular review confirms it. There are several instances of new arguments or newly-presented (but previously available) evidence that Defendants cite on _ reconsideration but did not highlight on summary judgment.
• Defendants offer a detailed review of state court proceeding in Roanoke, Virginia involving Plaintiff and the Department of Motor Vehicles (“DMV”). (Dkt. 153 at pp.10-12, 14 ¶¶ 35-40, 49). Defendants rely on that litigation and cite various statements or representations made during it, arguing that they legitimize DMV’s view (and their own) about which method of process Plaintiff selected for grieving her termination. (Id. at 18). But Defendants did not mention the Roanoke Circuit Court*895 proceedings once in their briefs supporting their motion for summary-judgment or in their brief opposing Plaintiff’s summary judgment motion. (Dkts. 87, 95, 97). The same is true regarding correspondence — now cited by Defendants — between DMVs counsel and Mr. Grab on November 25, 2013 and December 3, 2013. (Dkt. 153 at p.10, ¶¶ 33-34; see id. at p.18)
• For similar reasons, Defendants point to transcribed statements made by various attorneys, including one representing Plaintiff, at oral argument during a separate litigation in the Richmond City (Va.) Circuit Court. (Dkt. 153 at pp.4-5 ¶ 13; see id. at p.16). Nowhere in their original summary judgment briefs did they discuss those statements.
• Defendants’ summary judgment briefs did cite other aspects of the Richmond Circuit Court case to support their position, primarily a brief filed by Plaintiff on July 18, 2013. (Dkt. 87 at 9, 18; dkt. 95 at 6). But my January 7th opinion acknowledged that argument and found that it was not viable. (Dkt. 140 at 9-10, 15-16 & nn.7, 13). In their reconsideration brief, Defendants try to bolster their position with evidence of correspondence or submissions to the Richmond Circuit Court on July 1st, 3rd, and 26th of 2013. (Dkt. 153 at pp.5-7 ¶¶ 15-17, 19). Once again, this evidence was not discussed in Defendants’ summary judgment briefs. (Dkts. 87, 95, 97).
• Defendants now wish to emphasize portions of their deposition testimony recounting their reliance on counsel in deciding what process was due to Plaintiff. (Dkt. 153 at 13-14 ¶¶ 46-48). They then use this evidence to support an argument that they are entitled to qualified immunity based, in part, on the advice of counsel. (Id. at 24 (citing Wadkins v. Arnold,214 F.3d 535 (4th Cir.2000))). But Defendants’ qualified immunity argument on summary judgment neither used this evidence nor cited the law on which they now rely. (Dkt. 87 at 19-20; dkt. 95 at 9).
While additional instances are discussed below, the aforementioned examples show that the instant motion is merely an attempt to introduce previously-available evidence, present refurbish arguments, and otherwise re-litigate summary judgment. These are improper uses of reconsideration. Madison River,
relies upon the parties to put their best case forward and to present evidence in support of their arguments. Both this Court and the Fourth Circuit have observed that judges “are not like pigs, hunting for truffles buried in briefs” or “in the voluminous record.” Verrinder v. Rite Aid Corp., No. CIV. 3:06CV00024,2007 WL 4357595 , at *4 (W.D.Va. Dec. 11, 2007); see Walker v. Prince George’s Cty., MD,575 F.3d 426 , 429 n. * (4th Cir.2009).... Simply put, the onus is on counsel to put their evidence in the record and to direct the Court’s attention to it with briefs that intelligibly and efficiently cite the critical facts.
(Dkt. 146 at 8 n.6, available at 2016 WL • 264959 (W.D.Va. Jan. 21, 2016)). Indeed, defendants — relying on their “additional facts [that] counter” the conclusions in my January 7th opinion — earnestly conceded at the March 3, 2016 oral argument that their materials “should have been put in the record” at summary judgment.
Likewise, courts widely agree that parties have the burden to present legal
II. DEFENDANTS’ REASONS FOR RECONSIDERING THE DUE PROCESS CLAIM ARE UNAVAILING
In addition to the procedural shortcomings of the motion for reconsideration, the Court also finds its substantive arguments lacking. Defendants make three arguments against my prior decision on the merits of the due process claim. The first two — one regarding the import of a March 13, 2013 statement by Plaintiffs counsel,
Taken more generally, these arguments amount to the contention that I misapplied the summary judgment standard in the setting of cross-motions by not construing the facts favorably towards Defendants when considering Plaintiffs motion. (Dkt. 153 at 14-15,18-21). For the moment, I put aside the appropriateness of arguing that the summary judgment standard was misapplied when the basis of the motion for reconsideration relies heavily on newly-advanced facts. See supra. Indubitably, the January 7th opinion did not specifically address the standard on cross-motions for summary judgment, but for good reason: There was no genuine dispute of material fact or inference, only the legal conclusions that flowed from them.
Defendants themselves made this clear. Their opposition brief to Plaintiffs summary judgment motion admitted the case “presents the unusual situation in which each party believes that the undisputed evidence points to judgment as a matter of law in his or her favor.” (Dkt. 95 at 2 (emphasis added)); see also Webster v. ACB Receivables Mgmt., Inc.,
Judicial estoppel is an illuminating concept here because it “is designed to prevent a party from playing fast and loose with the courts and protect the essential integrity of the judicial process.” Sedlack v. Braswell Servs. Grp., Inc.,
First, the party sought to be estopped must assert a position inconsistent with that taken in prior litigation and the position must be one of fact rather than law or legal theory. Second, the prior inconsistent position must have been ac*898 cepted by the court. And third, the party sought to be estopped must intentionally have misled the court to gain unfair advantage.
Id. Defendants’ current position is inconsistent with the position they took on summary judgment and with which the Court agreed. Nevertheless, .judicial estoppel does not apply because whether a material dispute of fact exists is a question of law for the Court, not one of fact. Webster v. ACB Receivables Mgmt., Inc.,
The Court is also not convinced that Defendants’ original position was “misleading,” as judicial estoppel requires, because Defendants were correct the first time: The evidence and the reasonable inferences did not create a genuine dispute of material fact. See Ross v. Commc’ns Satellite Corp.,
As a third and final reason for reconsidering the due process claim, Defendants Hill and Thorpe cite new excerpts of their depositions and argqe that they were not responsible for providing process to Plaintiff. (Dkt. 153 at 21).
The Court has already mentioned Defendants’ newfound “reliance on the advice of counsel” argument, and rejects it for the reasons stated above.
Defendants on summary judgment made only a short qualified immunity argument, asserting simply that Riccio v. County of Fairfax,
IV. SUPERVISORY LIABILITY REMAINS
Quoting directly from Defendants’ moving brief on summary judgment, my January 7th opinion observed that in “the absence of a constitutional injury, there is not cause of action against a supervisor” and that “Defendants Hill and Holcomb rest their supervisory liability defense on the[ir] argument [on the merits as to] Due Process.” (Dkt. 140 at 20-21 (quoting dkt. 87 at 20)).
CONCLUSION
For the reasons discussed above, Defendants motion for reconsideration will be denied. The clerk is directed to send a copy of this opinion to all counsel of record. An appropriate order will follow.
Notes
. Defendants eventually made this point explicit in the reply brief. (Dkt. 158 at 12).
. Defendants finally discussed the applicable standard of review in their reply brief after Plaintiff raised the issue. (Dkt. 158 at 1-4).
. Presently, the Court is without the benefit of a transcript from oral argument, and thus draws on its recollection and contemporaneous notes when recounting the March 3rd hearing.
. Specifically, I found that Plaintiff's March 13, 2013 response to Defendant Hill's suspension and allegation letter — in which she stated she "wished to pursue this matter under” the Virginia Grievance Procedure ("VGP”)— could not reasonably have been thought to address how she wanted to grieve her termination, given the fact that she had not even been terminated yet. Nothing in Defendants' motion leads me to reconsider that conclusion.
. I concluded Plaintiff did not forgo administrative remedies. Defendants once again argue that the VGP’s director agreed with them based on a November 19, 2013 letter. (Dkt. 87-10 at ECF 16). I addressed this position in the January 7th opinion, concluding that Plaintiff had the ability to choose between two methods of grievance, that she in fact did so prior to the director's letter, that Defendants ignored her decision, and that the VGP director ultimately agreed on May 6, 2014 with Plaintiff's view that she made an election in October 2013 (thus extinguishing any reasonable basis for Defendants’ refusal to proceed in accordance with Plaintiff's wishes, assuming such a basis existed in the first instance). (Dkt. 140 at 11 n.8, 16-17).
Moreover, Defendants misstate the contents of the VGP director’s May 6, 2014 letter. They assert — and vigorously maintained at oral argument — that the letter declared Plaintiff had chosen, “by her May 5, 2014 correspondence,” the non-VGP method of grievance, and it was that purported "May 5, 2014 election” which “prompted [the director’s] decision to foreclose the VGP” on May 6, 2014. (Dkt. 153 at p.13 ¶ 45 (emphasis added)). (This maneuver allows Defendants to (1) skirt the Court’s conclusion that-Plaintiff's October
But that is not what the director’s May 6th letter did or said: It mentioned Plaintiff’s "May 5, 2014” letter not as proof of an election as of that date, but because Plaintiff’s May 5, 2014 letter clearly referred to the director to the "grievance previously copied to” him (i.e., the October 25, 2013 election). The full sentence from the May 6th letter reads:
On May 5, 2014, Ms. Baudean provided a response in which she indicated that her client had elected to resolve her grievance under the [non-VGP option] in a grievance previously copied to EDR.
(Dkt. 153-4 at ECF 23 (emphasis added)). A review of Plaintiff's May 5th letter makes clear that it was pointing the director's attention to the grievance filed "on October 25, 2013” seeking non-VGP process. (Id. at ECF 22). Defendants’ so-called "May 5, 2014 election” is a fiction created by ignoring both the italicized phrase of the director’s May 6th letter and the actual contents of Plaintiff’s May 5th letter to which it referred.
Finally, even accepting their characterization of the letter of May 6, 2014, Defendants have never adequately explained why — when the VGP director unambiguously decreed that Plaintiff "is no longer able to pursue a dismissal grievance under the [VGP]” (dkt. 153-4 at ECF 23) — they continued their refusal to provide Plaintiff with a simple post-termination hearing. Twenty-two months (and counting) after learning from the VGP director himself that the VGP — i.e., the process Defendants tried to dragoon Plaintiff into— was foreclosed, no hearing to Plaintiff has been provided. See Cleveland Bd. of Educ. v. Loudermill,
. The testimony cited by Defendants actually undermines, rather than supports, the assertion that they lacked culpability. For example:
Q: Who ultimately had the decision whether Ms. Wootten was going to be permitted a hearing under Law-Enforcement Officers Procedural Guarantee Act?
A: Ultimately, I think it would reside with Joe Hill.
(Dkt. 153-4 at ECF 33 (Ex. MM, Excerpts of Jeannie Thorpe Dep.)). .
. The January 7th opinion rejected the argument. (Dkt. 140 at 17 n.14).
. Hill and Thorpe offered no substantive argument on the supervisory liability claim in opposition to Plaintiff’s motion for summary judgment, and their reply brief in support of their own motion merely incorporated by reference their prior briefs. (Dkt. 97 at 8; see generally dkt. 95).
. As Defendants correctly noted in their opposition to Plaintiff's motion for summary judgment (dkt. 95 at 1 n.l), the Court already dismissed Defendant Thorpe from Count VI, the supervisory liability claim. (Dkt. 46 at 25-26 (Opinion); dkt. 47 (Order); see dkt. 87 at 2). Although Plaintiff subsequently was allowed to amend her complaint to add a First Amendment claim, the order stated "[Ijeave is not granted to renew any other claims previously dismissed." (Dkt. 105). Plaintiff's amended complaint violated that order by reasserting Count VI against Defendant Thorpe. (Dkt. 109 ¶¶ 129-139).
In other words, Count VI was not properly pending against Defendant Thorpe at the time of summary judgment. Consequently, my January 7th opinion did not refer to her in its analysis of Count VI, although neither did it exclude her by name. For the avoidance of