Federal court rejects motion to reconsider $3M ADA violation case

By Elizabeth Alt | May 22, 2018

The U.S. District Court for Southern California denied a man’s motion to have his case alleging violations of the Americans with Disabilities Act and mail fraud reheard for lack of new evidence to warrant a reconsideration of summary judgment.

The U.S. District Court for Southern California denied a man’s motion to have his case alleging violations of the Americans with Disabilities Act and mail fraud reheard for lack of new evidence to warrant a reconsideration of summary judgment.

U.S. District Judge William Q. Hayes wrote the order for the court on May 7, finding that “plaintiff does not establish that the documents are newly discovered evidence and fails to establish adequate grounds for reconsideration.”

The plaintiff, Larry Kerns, filed a motion for reconsideration of his November 2017 denial, citing he had new evidence that “proves that he was eligible for full retirement benefits and that defendant (Mathew J. Wenner) knew plaintiff was eligible for full retirement benefits as of July 8, 2010. Plaintiff contends that he has seen this evidence many times but that he “simply did not or could not; comprehend; the evidence (information) on the previous pages; until a few weeks; ago. One of my; Disability, Issues,” according to court filings.

In 2016, Kerns filed a suit seeking $3 million in punitive damages against Wenner, Hugh Gaylord, Edward Treacy, Thomas Sarnecki, George Tedeschi, Charles Kamen and John D. Bachler for allegations of mail fraud and violations of the ADA regarding his benefits under his GCIU-Employment Retirement Fund. All defendants besides Wenner were dismissed with prejudice.

The court denied Kerns' motion for summary judgment in November 2017, finding he had failed to satisfy the burden of proving his ADA and mail fraud claims. Kern's motion to reconsider was filed in December 2017.

The defendants filed an objection to Kerns’ motion for reconsideration in January stating the motion should be denied for lack of providing any new evidence that wasn’t available at the time of the trial. Their motion also claims his motion should be denied for “lack of foundation; lack of authentication; lack of personal knowledge; hearsay; irrelevance; and ambiguous, confusing, and misleading evidence.”

Quoting court precedent, Hayes, in his ruling, stated, “A motion for reconsideration ‘may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” Hayed alsofound Kerns failed to prove any of his documents were new evidence not available during trial or establish grounds for a reconsideration of his case.

Hayes ordered that Kerns' motion for reconsideration, motion to dismiss and motion to exclude his retirement contract to be dismissed.

U.S. District Court Southern District of California, Case Number 16cv2438-WQH-AGS

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