United States of America v. Schmidt et al

Filing 105

ORDER denying 93 Motion for Reconsideration re 91 Order as set forth in document. Signed by Judge Mary Ann Vial Lemmon. (ecm, )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA VERSUS ERIN SCHMIDT, KEITH NUNEZ, AND MICHAEL O'KEEFE, SR.

CIVIL ACTION NO: 08-0286 SECTION: "S" (5)

ORDER IT IS HEREBY ORDERED that the United States of American's "Motion for Reconsideration," pursuant to Federal Rule of Civil Procedure 59(e), of the denial of the motion for summary judgment against Keith Nunez or, alternatively, for reconsideration of the quantum of damages awarded against Erin Schmidt, is DENIED. (Document #93.) The evidence does not establish that Keith Nunez had dominion or control over the funds deposited in the account in his name in the Whitney Bank or that he had the right to put the transferred funds to his own purpose. The government's assertion that Nunez could have ignored O'Keefe and others and spent the money is speculative and inconsistent with the facts before the court. Moreover, the government seeks a remedy against Schmidt in its Rule 59(e) motion that

it could have raised prior to the judgment.1 Instead of seeking the full amount, the motion for summary judgment sought a judgment again Schmidt of $27,770.88, plus interest, costs, and expenses, not the $92,645.55 that was placed in the Whitney account. The government may not raise this issue in a Rule 59(e) motion. See Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000).

13th New Orleans, Louisiana, this _____ day of January, 2010.

____________________________________ MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE

It is noteworthy that O'Keefe was sentenced in 1999, but the United States did not file applications for writs of execution against the Whitney and Capital One bank accounts until December 13, 2007, and a civil complaint against the defendants until January 10, 2008. 2

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