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)

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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. -2­ So Ordered. j. -­ v D.P. Marshall Jr. United States District Judge -3­

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