Gros v. Warren Properties, Inc. et al

Filing 51

ORDER AND REASONS denying 30 Motion to Alter Judgment. Signed by Judge Carl Barbier on 8/13/2013. (mmm)

Gros v. Warren Properties, Inc. et al

Doc. 51

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION
SEAN GROS
VERSUS

NO: 12-2184

WARREN PROPERTIES, INC., YORK
RISK SERVICES GROUP, INC., and
DEBORAH BODINE

SECTION: "J”(3)

ORDER AND REASONS
Before the Court is Plaintiff's Rule 59(e) Motion to Alter or
Amend the Court's November 26, 2012 order denying Plaintiff's
motion to remand and dismissing Plaintiff's claims against Deborah
Bodine ("Bodine"). (Rec. Doc. 30) Defendant, Warren Properties,
Inc. ("Warren"), opposes Plaintiff's motion. (Rec. Doc. 34) The
motion was set for hearing on Wednesday, January 2, 2013, on the
briefs. Having considered the motion, the memoranda, the record,
and the applicable law, the Court finds that Plaintiff's motion
should be DENIED.
On July 25, 2012, Sean Gros (“Plaintiff”) filed a personal
injury suit in the 22nd Judicial District Court for the Parish of
St. Tammany. (Pl.’s Pet. ¶ 1, Rec. Doc. 1-1)

Plaintiff alleges

that on or about July 23, 2011, he occupied a unit in a Slidell
condominium building, the Anchorage Condominiums, as a tenant under
a

lease

agreement

administered

(“Warren”). (Pl.’s Pet. ¶

by

Warren

Properties,

Inc.

3, Rec. Doc. 1-1) He further alleges

that on or about July 23, 2011, he was descending a common stairway

Dockets.Justia.com

in a stair tower located within, and forming a part of, the
condominium building, when the stair tower lights suddenly went off
and the emergency back-up lights simultaneously failed to come on,
causing the plaintiff to lose his balance, fall to the floor, and
slide down the stairs on his back and rear side. (Pl.’s Pet. ¶

3-

4, Rec. Doc. 1-1) Plaintiff alleges that he sustained serious
personal injuries to his finger, back muscles, and spine as a
result of his fall and the resultant slide down the stairs. (Pl.’s
Pet. ¶¶ 4, 7, Rec. Doc. 1-1)
In his petition, Plaintiff named Warren, York, and Deborah
Bodine (“Bodine”) as Defendants.1 (Pl.’s Pet. ¶ 1, Rec. Doc. 1-1)
Plaintiff asserted claims for negligence and strict liability
against

Warren,

the

alleged

owner,

operator,

manager,

and/or

custodian of “a group of residential condominium units,” who
administered

Plaintiff’s

lease

of

a

condominium

unit

in

the

building, and Bodine, who Warren allegedly employed as the property
custodian, resident manager, supervisory employee and/or landlord
of the condominium units and common building areas where Plaintiff
allegedly suffered injuries.
On August 31, 2012, Defendants, Warren and York, removed the
action pursuant to 28 U.S.C. §§ 1332 and 1446 asserting that this

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Plaintiff also originally named York Risk Services Group ("York") as a
Defendant. However, on November 7, 2012, the Court granted the parties' joint
motion to dismiss Plaintiff’s claims against York without prejudice on the
grounds that Plaintiff erroneously named York as an insurance carrier when
York was in fact only a third party administrator. (Rec. Docs. 22, 25)

2

Court has jurisdiction over the action pursuant to 28 U.S.C. §
1332, diversity of citizenship. (Rec. Doc. 1) In the Notice of
Removal, Defendants asserted that Bodine, the only non-diverse
defendant, was improperly joined for the sole purpose of destroying
federal jurisdiction, and that the Court could thus disregard
Bodine’s citizenship for diversity purposes. (Rec. Doc. 1, p. 3) On
September 19, 2012, Plaintiff filed a motion to remand the action
to state court (Rec. Doc. 9), which Warren opposed. (Rec. Doc. 17)
On November 26, 2012, the Court issued an order (Rec. Doc. 27)
denying Plaintiff's motion to remand and dismissing Plaintiff's
claims against the sole non-diverse defendant, Bodine, on the
grounds that she had been improperly joined for the purpose of
defeating diversity jurisdiction. On December 6, 2012, Plaintiff,
filed an opposed Rule 54(b) motion, requesting that the Court enter
final judgment on its November 26, 2012 order so that he could take
an immediate appeal. The Court denied Plaintiff's Rule 54(b) motion
on August 13, 2013. On December 6, 2012, Plaintiff also filed the
instant Rule 59(e) Motion seeking to alter or amend the Court's
November 26, 2012 order denying his motion to remand and dismissing
his claims against Bodine. On December 21, 2012, Warren filed its
opposition.
DISCUSSION
Plaintiff

has

properly

and

timely

filed

his

motion

for

reconsideration as a Rule 59(e) motion to alter or amend. Given

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that (a) the November 26, 2012 order adjudicated fewer than all of
Plaintiff's claims, and (b) the Court denied Plaintiff's motion for
entry

of

final

judgment

on

that

order,

the

order

is

an

interlocutory order that may be revised at any time before the
entry of a final judgment adjudicating all the claims and all the
parties' rights and liabilities. Fed. R. Civ. P. 54(b). Although
the Federal Rules do not explicitly provide for motions for
reconsideration of interlocutory orders, St. Paul Mercury Ins. Co.
v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997), the Court
has the inherent power to modify its interlocutory orders, and this
Court has previously recognized that such motions are properly
governed by the standards of Rule 59(e). Karr v. Brice Bldg. Co.,
Inc., No. 08-1984, 2009 WL 1458043, at *2 (E.D. La. 2009).
However, a court's reconsideration of an earlier order is an
extraordinary remedy, which should be granted sparingly. See Fields
v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La.
Feb.3, 1998), aff'd, 182 F.3d 353 (5th Cir. 1999); Bardwell v.
George G. Sharp, Inc., 1995 WL 517120, at *1 (E.D. La. Aug.30,
1995). The Court must “strike the proper balance” between the need
for finality and “the need to render just decisions on the basis of
all the facts.” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6
F.3d

350,

355

(5th

Cir.

1993).

To

succeed

on

a

motion

for

reconsideration, a party must “‘clearly establish either a manifest
error of law or fact or must present newly discovered evidence.”’

4

Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (quoting Simon
v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). “Like a
motion under Rule 59(e), a motion to reconsider may not be used to
relitigate old matters, or to raise arguments or present evidence
that could have been raised before the entry of the judgment or
order.” T-M Vacuum Products, Inc., 2008 WL 2785636, at *2, aff'd,
336 F. App'x 441 (5th Cir. 2009). Moreover, Rule 59(e) motions
should not be used to argue a case under a new legal theory or
raise new arguments. Simon v. United states, 891 F.2d 1154, 1159
(5th Cir. 1990); Danos v. Union Carbide Corp., No. 11-2491, 2012 WL
5877951, at *2 (E.D. La. Nov. 20, 2012).
Plaintiff explicitly requests that the Court (a) reverse its
order denying his motion to remand and dismissing his claims
against Bodine and (b) remand the case to state court. Plaintiff's
motion is an attempt: (a) to re-litigate the sufficiency of his
pleadings with respect to Bodine, (b) to re-direct the Court's
attention

to

the

same

affidavits

and

declarations

that

were

attached to the parties' briefing on the motion for remand, and (c)
to urge new legal arguments and theories in support of his original
motion to remand.
Neither Plaintiff's series of rhetorical questions about the
sufficiency of the allegations in his petition nor his assertion
that there are substantial grounds for difference of opinion as to
(a) whether his complaint was conclusory and (b) what the effects

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of conclusory allegations should be, establishes a manifest error
of law or fact, which is the appropriate standard on this motion
for

reconsideration.

Plaintiff's

argument

that

his

complaint

described the material facts and transactions that are the subject
matter of the litigation in detail sufficient to satisfy the
requirements of the Louisiana Code of Civil Procedure — as opposed
to Rule 8 of the Federal Rules of Civil Procedure — is a new legal
argument in support of his original motion to remand that is not
properly considered on a Rule 59(e) motion for reconsideration.
Simon, 891 F.2d at 1159. Moreover, Plaintiff has attempted to
rehash his arguments regarding the propriety of remand and Bodine's
duties by referring to the same declarations and cases that he
relied on in his original motion to remand. The Court agrees with
Warren that this is precisely what is not allowed on a Rule 59(e)
motion for reconsideration.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Alter or
Amend (Rec. Doc. 30) is DENIED.
New Orleans, Louisiana, this 13th day of August, 2013.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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