CONE v. FLYNN RESTAURANT GROUP LP

IN THE U NITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
DANIEL SCOTT CONE,
Plaintiff,
v .
FLYNN RESTAURANT GRO UP
d/b / a HUT AMERICA ,
Defendant.
ORDER
CASE NO:
7: 26-cv-288-WLS
B efore the Court is Plaintiffs Motion for Reconsideration of Fee \Vaiver (Form AO
239) or, in the Alternative, Notice of Voluntary Dismissal (Doc. 5) (" Motion"). Therein
Plai ntiff seek reconsideration of the Court's September 9, 2026 Order (Doc . 4) denying
Plai ntiffs application to proceed in forma pauperis (D oc. 2) ("I FP Application"). Alternatively,
Plai ntiff requests his case be voluntarily dismissed.
I. 	MOTION FOR RECO NS IDERATION
A. Standard of Review
Under the Local Rules of this Court, motions for reconsideration shall not be filed as
a matter of routine practice. M.D . Ga . L.R. 	7.6. Motions for reconsideration, whether
considering final or non-final judgments, are within " the sound discretion of the district
judge." Region 8 Fo rest 5 erv. T imber Purchasers Council v. A lcock, 993 F.2d 800, 805- 06 (11th Cir.
1993). It is the practice of this Court, in both civil and criminal cases, to grant a motion for
reconsideration only when the movant timely demonstrates that : " (1) there has been an
intervening change in the law; (2) new and previously unavailable evidence has been discovered
through the exercise of due diligence; or (3) the court made a clear error of law." Fla. Fo und
S eed Producers, I nc. v. Geor;gia F arms S ervs., ILC, 977 F. Supp . 2d 1336, 1337- 38 (M.D . G a. 2013);
see McCoy v. Macon Water Auth., 966 F . Supp . 1209, 1222-23 (M .D . G a. 1997) (same). "TI1e only
grounds for granting a Rule 59 motion are newly-discovered evi dence or manifest errors of
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law or fact. A Rule 59(e) motion cannot be used to relitigate old matters, raise argument or
present ev idence that could have been raised prior to the entry of judgment." A rthur v. King,
500 F.3d 1335, 1343 (11th Cir . 200 7) (per curiam) (modified). "A motion for reconsideration
is not an opportunity for the moving party ... to instruct the court on how the court 'could
have done it better' the first time." Pres. E ndangered A reas of Co bb's Hist. , I nc. v. U.S. A rmy Co rps
ofE ng'rs, 916 F. Supp . 1557, 1560 (N .D . Ga. 1995), ajfd, 87 F.3d 1242 (11th Cir . 1996).
B. Analy sis
In its September 9, 2026 Order , the Court found that Plaintiff had excess income
sufficient to pay the filing fee without causing Plaintiff undue hardship and thus, denied
P laintiffs IFP Application . T he Court also noted that Plaintiff has no housing expense
because he lives in his late mother's house . The house is debt free and is still in his mother's
name only because P laintiff and his sister have not transferred title to the house. P laintiff
did not provide a value for the house .
In his Motion , Plaintiff indicates the Court misinterpreted the financial information
in his I FP Application. The P laintiff is correct in that the Court credited the income of $4 75,
plus tips, in paragraph 1 to a spouse, rather than the ongoing income Pl aintiff expects to
receive " next month " instead of the $1,744.27 receiv ed in the previous twelve months . (Doc.
2 at 1). This is obv ious ly a significant change . H owever, P laintiff also advised the Court that
the $475, plus tips, is bi -weekly income rather than monthly income. Furtl1er, that income
appears to be based on ten hours of work rather than the increase to eighteen hours which
P laintiff references in his IFP Application. (S ee D oc. 2-1 at 3). Further , P laintiff still has not
provided a value for his interest in his late mother's house. Thus , tl1e Court finds that
P laintiff shall be given an opportunity to provide an amended I FP Application .
Accordingly, Plaintiffs Motion for Reconsideration of Fee Waiver (Form AO 239) or ,
in the Alternative, Notice of Voluntary D ismissal (D oc. 5) is GRANTED to the extent it
requests the Court reconsider its September 9, 2026 Order (D oc. 4). T o proceed with tlus case,
on or before Friday, October 23, 2026, Plaintiff must either pay tl1e full amount of tl1e filing
fee or file a properly completed Applica tion to P roceed without P repaying Fees (IFP) Non -
P risoner L ong Form (AO239) by that date . TI1e AO239 Application must be fully compl eted
with accurate and detail ed information required by the form , including all current sources of
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Plaintiff's income, including the amount of tips he receives, income from a second job if
obtained , and any other assistance received. Failure to pay the filing fee or to file the completed
AO239 Application by the deadline may result in dismissal, without prejudice, of the
Complaint without further notice.
SO ORDERED , this 9th day of October 2026.
/s/W . Louis Sands
W. LO U IS SANDS, SR. JU DGE
U NITED STATES DISTRICT CO U RT
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