Failure to Raise Spoliation Issue at Summary Judgment Stage — Not until Post-Trial Motions — Is Untimely and Bars Appellate Review

Smith v. BP Am., Inc., 2013 U.S. App. LEXIS 13656 (11th Cir. July 5, 2013):

D. Motion to Alter or Amend Judgment

"The only grounds for granting [a Rule 59] motion are newly-discovered evidence or manifest errors of law or fact." In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). "[A] Rule 59(e) motion [cannot be used] to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005). For this reason, we only address the portion of Mr. Smith's Rule 59(e) motion that raised a new issue.

Footnote 5. Mr. Smith's Rule 59(e) motion also made an argument that BP is guilty of spoliation of evidence.... That argument has been renewed on appeal. See Initial Br. at 10. But, Mr. Smith's spoliation argument could have been raised in support of his motion for partial summary judgment and/or in his response to BP's motion for summary judgment. Accordingly, we do not reach the issue of spoliation as Mr. Smith failed to timely raise the issue. See Michael Linet, Inc., 408 F.3d at 763.

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