Dorvin et al v. 3901 Ridgelake Drive, LLC et al
Filing
229
ORDER AND REASONS denying third-party plaintiff Gayle O. Jenkins' 184 Motion for Reconsideration. Signed by Judge Ivan L.R. Lemelle on 7/26/2012. (ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DOROTHY WATKINS DORVIN, ET AL
CIVIL ACTION
VERSUS
11-CV-696
3901 RIDGELAKE DRIVE, LLC, ET AL
SECTION B(2)
ORDER AND REASONS
Before the Court is third-party Plaintiff Gayle O. Jenkins’
("Jenkins") Motion for Reconsideration (Rec. Doc. No. 184) and
third-party Defendant Harry Baker Smith Architects II's ("HBSA
II") opposition. (Rec. Doc. No. 197). Accordingly, IT IS ORDERED
that
third-party
Plaintiff
Gayle
O.
Jenkins’
Motion
for
Reconsideration (Rec. Doc. No. 184) is DENIED.
PROCEDURAL HISTORY
This matter originally rose out of the preparation and
construction of a 16-unit residential condominium development at
3901 Ridgelake Drive, Metairie, Louisiana. (Rec. Doc. No. 138 at
1). The development was named “Ponchatrain Caye Condominiums.”
(Rec. Doc. No. 109 at 2). Plaintiffs are the purchasers of
condominiums in the complex, which were all marketed and sold by
3901 Ridgelake Drive, LLC (“3901”). Id. After moving into the
units
in
2007,
Plaintiffs
discovered
multiple
construction
defects resulting from “shoddy . . . defective workmanship.”
(Rec. Doc. No. 1-2 at 2). After Plaintiffs allegedly alerted
3901 of the damaged area(s), the Defendants allegedly promised
to
address
the
defects
and
poorly
constructed
areas.
Id.
However, the repairs were not fully completed and the Plaintiffs
continued to notice problems. Id.
The Plaintiffs filed the instant suit in the 24th Judicial
District for Jefferson Parish, Louisiana on February 15, 2008.
(Rec. Doc. No. 109 at 5). Plaintiffs filed suit against 3901 and
Gayle
O.
Jenkins,
and
other
known
associates.
Id.
Gayle
O.
Jenkins, is the principal owner/developer of 3901. (Rec. Doc.
No. 122-1 at 2). Because Jenkins filed for bankruptcy on January
28, 2011, this case was removed to the Eastern District of
Louisiana on March 31, 2011 under 28 U.S.C. § 1334(e)(1). (Rec.
Doc. No. 1).1 The instant suit was reallotted to this chambers
on January 18, 2012. (Rec. Doc. No. 109 at 6).
Subsequently,
Plaintiff,
3901
on
March
Ridgelake,
14,
added
2012,
HBSA
II
as
as
a
third-party
a
third-party
Defendant. (Rec. Doc. No. 99). HBSA II entered into a contract
with
3901
as
the
architect
1
for
the
“Ponchatrain
Caye
This statute provides that “[t]he district court in which a case
under title 11 is commenced or is pending shall have exclusive jurisdiction
over “all the property, wherever located, of the debtor as of the
commencement of such case . . . .” 28 U.S.C. § 1334(e)(1) (2006).
-2-
Condominiums” development, and was responsible for the design of
the project.
It is alleged to have committed substantial and
material breaches of its contract with 3901. Id. at 2.
3901
Ridgelake sought indemnification from HBSA II and its insurer
for any losses and damages attributed to its breach of contract.
Id. On May 14, 2012, HBSA II submitted a Motion for Summary
Judgment against 3901. (Rec. Doc. No. 122-1).
On May 31, 2012, this Court granted HBSA II's Motion for
Summary Judgment (Rec. Doc. No. 148), finding Summary Judgment
appropriate because the motion was deemed "unopposed," and it
appeared to this Court that the motion had merit. Id. On May 23,
2012,
one
day
after
Jenkins's
opposition
to
the
Motion
for
Summary Judgment was filed, the Clerk's Office issued a Notice
of
Deficient
referrred
to
Document.
(Rec.
Doc.
Jenkins's
opposition
No.
and
197-1).
instructed
The
notice
that
the
Statement of Material Facts was not provided. Id.2 The Clerk
instructed Jenkins to refile the document in its entirety within
seven calendar days, or otherwise it would be stricken by the
Court. Id. The refiled document was due by May 30, 2012. Id.
Jenkins did not file a statement of contested facts by the May
30 deadline, which caused the opposition document to be stricken
2
Local Rule 56.2 requires that "any opposition to a motion for summary
judgment must include a separate and concise statement of material facts
which the opponent contends present a genuine issue." LR 56.2.
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from the record, and the Motion for Summary Judgment was deemed
unopposed.. Thus, giving this Court reason to grant HBSA II's
motion. (Rec. Doc. No. 148). Jenkins then filed its Motion for
Reconsideration (Rec. Doc. No. 184) on June 25, 2012, and HSBA
II
filed
its
opposition
memorandum
(Rec.
Doc.
No.
197)
in
response.
CONTENTIONS OF MOVANT
Jenkins asserts that HBSA II's Motion for Summary Judgment
should be vacated and set aside because Jenkins's opposition was
timely
filed
pleading.
on
(Rec.
May
22,
Doc.
No.
2012,
when
184).
it
filed
Jenkins
its
contends
deficient
that
the
deficiency was due to the certificate of service not being filed
as a "separate pleading" which the Clerk corrected on May 23,
2012.
Id.
Pursuant
to
this
argument,
Jenkins
asserts
that
because the deficiency was corrected by the Clerk, the filing
date for timeliness purposes should be the earlier "deficient"
filing date. (Rec. Doc. No. 184-1).
CONTENTIONS OF RESPONDENT
HBSA II first asserts that Jenkins's motion omits critical
facts concerning the Notice of Deficient Document on May 23,
2012,
which
Material
required
Facts
and
a
Jenkins
to
provide
re-submission
of
the
the
Statement
document
in
of
its
entirety within seven calendar days. (Rec. Doc. No. 197 at 2).
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HBSA II contends that Jenkins's "plain error" argument fails
because Jenkins did not comply with Local Rule 56.2 and submit
the Statement of Material Facts. Id. at 3. Secondly, HBSA II
asserts that the motion is facially-deficient because Jenkins’
argument is not based on a particular Federal Rule of Civil
Procedure as required by this Court's instruction in filing a
Motion of Reconsideration. Id.3 Third, HBSA II contends that
Jenkins's
motion
fails
to
assert
and
satisfy
any
of
the
requirements under Fed. R. Civ. P. 59 to prevail on a Rule 59(e)
Motion
for
Reconsideration.
Id.
at
4.4
Finally,
HBSA
II
contends that even though Jenkins requests that his opposition
be deemed timely filed, because of the substantive nature of the
violation and the failure to comply before the deadline, this
would still result in the granting of summary judgment. Id. at
6.5
3
In granting HBSA II's Motion for Summary Judgment, this Court
instructed that "a motion for reconsideration of this Order based on the
appropriate Federal Rules of Civil Procedure, if any, must be filed within
30 days of this Order." (Rec. Doc. No. 148).
4
The moving party "must satisfy at least one of the following criteria
to prevail on a Rule 59(e) motion: (1) the motion is necessary to correct a
manifest error of fact or law; (2) the movant presents newly discovered or
previously unavailable evidence; (3) the motion is necessary in order to
prevent manifest injustice; or (4) the motion is justified by an intervening
change in the controlling law.” Terrebonne Parish School Board, 348
F.Supp.2d 769, 771 (E.D.La. 2004).
5
For failure to comply with LR 56.2, this district has deemed material
facts admitted for deciding summary judgment motions when the oppposing
party does not provide a statement of contested material facts required by
-5-
LAW AND ANALYSIS
A. STANDARD OF REVIEW
The Federal Rules of Civil Procedure do not provide for a
"Motion for Reconsideration" but such motions may properly be
considered
either
a
Rule
59(e)
motion
to
alter
or
amend
a
judgment or a Rule 60(b) motion for relief from a judgment. See
Bass v. U.S. Dept. of Agriculture, 211 F.3d 959, 962 (5th Cir.
2000); Hamiliton Plaintiffs v. Williams Plaintiffs, 147 F.3d
367, 383 (5th Cir. 1998). In order to be timely filed, a Rule
59(e)
motion
must
be
filed
within
twenty-eight
days
of
the
judgment or order of which the party complains. Fed. R. Civ. P.
59(e).
Otherwise,
a
motion
for
reconsideration
will
be
considered as a Rule 60(b) motion. Freeman v. County of Bexar,
142 F.3d 848, n.7 (5th Cir. 1998). It is undisputed that Jenkins
filed the Motion for Reconsideration within twenty-eight days of
the date on which this Court issues it granting of HBSA II's
Motion for Summary Judgment. (Rec. Doc. No. 148).
There are generally four grounds upon which a court may
alter or amend its ruling or judgment under Rule 59(e) of the
Federal Rules of Civil Procedure: (1) if the judgment is based
upon manifest errors of law or fact;(2) upon the existence of
LR 56.1. See, e.g., Smith v. Keystone Shipping Co., 2005 WL 1458226 (E.D.
La. 2005).
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newly
discovered
or
previously
unavailable
evidence;(3)
if
manifest injustice will result; or (4) if an intervening change
in controlling law has occurred. See 11 Wright, Miller & Kane,
Federal
Practice
&
Procedure:
Civil
2d
§
2810.1
("Wright
&
Miller"); Rosenblatt v. United Way of Greater Houston, 607 F.3d
413, 419 (5th Cir. 2010). Jenkins does not assert any particular
ground for relief under this standard, and only requests that
this
Court
deem
the
Opposition
to
the
Motion
for
Summary
Judgment as timely filed. (Rec. Doc. No. 184-1).
B. Grounds for Reconsideration
Jenkins relies on Darouiche v. Fid. Nat’l Ins. Co., 415
F.App’x 548 (5th Cir. 2011) in asking this Court to find that
the opposition was timely filed. (Rec. Doc. 184-1 at 1). In this
case, the Fifth Circuit found that a motion for a new trial was
timely filed because the basis of its deficiency was due to a
“local
rule
that
require[d]
a
proposed
order
to
be
electronically filed as a separate attachment.” Darouiche at
552. The court concluded that the “minor formatting error in . .
.
the
motion
rendered
that
motion
too
insufficient
to
be
considered would unjustifiably elevate form over substance.” Id.
So, because the deficiency was based on a local rule of “form
-7-
only,” based on Fed.R.Civ.P. 83(a)(2) the panel concluded that
the motion was timely filed under Fed.R.Civ.P. 59.6
In this instance, Jenkins’s deficiency concerned the lack
of a Statement of Contested Material Facts required by LR 56.2.
(Rec.
Doc.
opposition
No.
to
197-1).
a
motion
Local
for
Rule
summary
56.2
requires
judgment
must
that
“any
include
a
separate and concise statement of the material facts which the
opponent contends present a genuine issue.”
First, in Jenkins’s motion there is no reference to the LR
56.2 requirement, which caused a deficiency in the opposition to
the Motion for Summary Judgment. (Rec. Doc. No. 184-1).
Second,
the Dairouche decision, referencing Fed.R.Civ.P. 83, does not
create
an
exception
for
substantive
deficiencies.
In
the
Official Comments to Fed.R.Civ.P.83, the drafters limit section
(a)(2) to include:
only those [errors] involving local rules directed to
matters of form . . . [it] does [not] affect the court’s
power to enforce local rules that involve more than mere
matters of form--for example, a local rule requiring
parties to identify evidentiary matters relied upon to
support or oppose motions for summary judgment.
Fed.R.Civ.P.83,
1995
Amendment.
Therefore,
the
deficiency
in
Jenkins’s opposition is one of substance and not of form, and
6
Fed.R.Civ.P. Rule 83(a)(2) requires that “a local rule imposing a
requirement of form must not be enforced in a way that causes a party to
lose any right because of nonwillful failure to comply.”
-8-
this
Court
has
the
power
to
strike
Jenkins’s
deficient
opposition from the record. Subsequently, this Court has the
power to grant HBSA II’s Motion for Summary Judgment because it
was unopposed and included a factual basis upon which to grant
the motion.
Furthermore, the consequence of non-compliance with LR 56.2
requires that unless the opposing party controverts the facts
given by the moving party, “all material facts in the moving
party’s statement will be deemed admitted, for purposes of the
motion.” Even if this Court would find that the opposition was
timely
filed,
granted
courts
Motions
for
in
this
Summary
jurisdiction
Judgment
in
have
cases
nevertheless
in
which
no
Statement of Contested Material Facts have been filed. See Smith
v. Keystone Shipping Company, 2005 WL 1458226 (E.D. La. 2005).
Without filing the Statement of Material Facts, the opposition
“is not supported by competent summary judgment evidence” which
deems
the
opponent’s
“assertions
and
allegations
[as]
unsubstantiated.” Id. at 2. So, although the opposition may be
timely filed, this jurisdiction may grant a Motion for Summary
Judgment
because
the
substantive
nature
of
this
particular
deficiency causes the opposition to be without merit. Id.
Moreover, this Court notes that on the merits here, thirdparty Plaintiff Jenkins’ opposition to summary judgment fails to
-9-
establish a material dispute over when third-party Plaintiff
exercised partial ownership or possession of the development at
issue.
Accordingly, IT IS ORDERED that third-party Plaintiff Gayle
O. Jenkins’ Motion for Reconsideration (Rec. Doc. No. 184) is
DENIED.
New Orleans, Louisiana, this 26th day of July, 2012.
______________________________
UNITED STATES DISTRICT JUDGE
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