Gallo v. Dillard's Inc

Filing 23

ORDER granting 19 Motion and vacating the earlier Judgment of the Court. Gallo should file his amended complaint by January 17, 2012. Signed by Judge D. P. Marshall Jr. on 1/9/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PLAINTIFF

DANIEL GALLO

v.

No.4:11-cv-640-DPM
DEFENDANT

DILLARD'S INC.
ORDER

Motion, Document No. 19, granted. Dillard's is right that there is no
basis for relief under Federal Rule of Civil Procedure 60(b). E.g., Prudential

Insurance Co. ofAmerica v. National Park Medical Center, Inc., 413 F.3d 897, 903
(8th Cir. 2005). Under Rule 59(e), the question is whether Gallo had a valid
reason for not amending his complaint to assert a § 1981 theory before
judgment. Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1082
(8th Cir. 1993).
In general, of course, trying to resuscitate a case post-judgment with a
new theory is disfavored, and it should be. The Court could not function if
a do-over was always available. But informing its discretion with all the
material circumstances, the Court concludes that valid reasons exist for relief
here. Gallo didn't plead a § 1981 claim because he didn't know he had one;
he was proceeding pro se with a form complaint provided by the Clerk. This

case was in its infancy, less than two months old, when the Court granted
Dillard's motion to dismiss. Gallo was trying to get a lawyer. And his § 1981
theory is just a different legal label on the detailed facts Gallo pleads in
support of employment discrimination.
The Court acknowledges the no-new-Iegal-theories language in the
cases. The Court has been unable to find precedent, however, requiring or
counseling that a non-frivolous lawsuit should end at the threshold in the
circumstances presented. Moreover, Gallo is not attempting" to relitigate old
matters, or to raise arguments ... that could have been raised prior to the
entry of judgment." Exxon Shipping Co. v. Baker, 554 U.s. 471, 486 n.5 (2008).
He is merely asserting an alternative means of recovery that would overcome
the procedural bar on which the previous dismissal turned. Foman v. Davis,
371 U.s. 178, 181-82 (1962). In the circumstances, the Court sees no real
prejudice in allowing the amendment.
Gallo's motion, Document No. 19, is granted pursuant to Rule 59(e). The
earlier Judgment of the Court, Document No. 15, is vacated. Gallo should file
his amended complaint by 17 January 2012.

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So Ordered.

j.

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v

D.P. Marshall Jr.

United States District Judge

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