Coste v. Jackson et al

Filing 108

ORDER granting 106 Motion for reconsideration. FURTHER ORDER that theCourt's 10/8/2013 Order & Reasons is amended to reflect the finding that the defendants' motion for summary judgment is DENIED for the reasons herein. A new scheduling order resetting the pretrial and trial dates only shall issue. All pending motions in limine are continued to the morning of trial. Signed by Judge Martin L.C. Feldman on 11/13/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARY LOUISE LUCIEN COSTE

CIVIL ACTION

VERSUS

NO. 13-119

LEE OTIS JACKSON, ET AL.

SECTION F
ORDER AND REASONS

Before the Court is the plaintiff's motion to alter or amend
the judgment under Rule 59(e), or, alternatively, for relief from
judgment under Rule 60(b). For the reasons that follow, the motion
is GRANTED.
Background
This lawsuit arises out of a motor vehicle accident at the
intersection of North Tonti Street and Almonaster Avenue in New
Orleans. Almonaster Avenue is a four-lane road with two northbound
lanes and two southbound lanes separated by a neutral ground.

At

around 11:00 a.m. on November 20, 2011, Lee Otis Jackson was
driving a dump truck hauling a trailer for his employer, Troy
Wilson, heading eastward on North Tonti Street across Almonaster
Avenue.

After crossing the two southbound lanes of Almonaster

Avenue, Jackson proceeded through the neutral ground and began to
cross the northbound lanes.

The plaintiff contends that Jackson

did not stop in the neutral ground before crossing the northbound
lanes, but the defendants counter that Jackson indeed stopped in
the neutral ground and looked both ways before proceeding.
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Meanwhile, Clint Lee Coste was operating a motorcycle and
proceeding north on Almonaster Avenue.

As Coste approached the

intersection of Almonaster and North Tonti, he lost control of his
motorcycle and began sliding up Almonaster toward the truck and
trailer. The plaintiff contends that Coste lost control attempting
to avoid the truck and trailer, and the defendants respond that
Coste lost control of the motorcycle because he was speeding (going
about 65 mph in a 35 mph zone).

The plaintiff alleges that Coste

collided with the trailer and that his motorcycle either slid under
or behind the trailer, coming to rest further up Almonaster Avenue.
The defendants dispute whether Coste collided with the trailer.
Coste

was

taken

by

ambulance

to

the

hospital

where

he

was

pronounced brain dead and later died.
On November 14, 2012, Mary Louise Lucien Coste, grandmother
and dative tutrix of Cordelle Keith Holland, the minor son of Clint
Lee Coste, sued Jackson, Wilson, and Acceptance Indemnity Insurance
Company in state court, alleging that Jackson's negligence caused
the accident resulting in Clint Lee Coste's injury and death.

The

plaintiff's complaint included both wrongful death and survival
claims.

On January 3, 2013, the defendants removed the suit,

invoking this Court’s diversity jurisdiction.
On May 10, 2013, the defendants filed their first motion for
partial summary judgment on the issue of the "no pay, no play"
affirmative defense (which limits a plaintiff's ability to recover

2

damages in a survival action where the decedent failed to carry
motor vehicle liability insurance), and on May 30, 2013, the Court
granted the motion.

The defendants then filed their second motion

for partial summary judgment on the plaintiff's survival claim, and
on August 5, 2013, the Court granted that motion.

Then, on

September 23, 2013, the defendants moved for summary judgment on
the wrongful death claim, and on October 8, 2013, the Court granted
the motion.

In granting the motion, the Court noted:

Although ordinarily a case such as this would be so factintensive that summary relief would not be proper, in
this case, the plaintiff has filed an "opposition"
memorandum that entirely fails to respond to defendants'
contention that no genuine issue of material fact exists
for trial regarding the only claims remaining in this
case, wrongful death. Instead, plaintiff submits nothing
more than an exact replica of an earlier memorandum in
response to defendants' previous motion for partial
summary judgment on the issue of the "no pay, no play"
affirmative defense, an issue that has nothing to do with
the motion now before this Court.
Judgment in favor of the defendants was granted the following day.
The plaintiff now moves to alter or amend the judgment under Rule
59, or for relief from judgment under Rule 60.
I.
A.
Motions requesting reconsideration of court orders generally
fall under Rule 59(e) or Rule 60 of the Federal Rules of Civil
Procedure.

See Higgins v. Cain, No. 07-9729, 2012 WL 3309716, at

*1 (E.D. La. Aug. 13, 2012).

Rule 59(e) provides that a motion to

alter or amend a judgment must be filed no later than twenty-eight
3

days after the entry of judgment.

Fed. R. Civ. P. 59(e).

Rule

60(b), on the other hand, applies to motions filed after the
twenty-eight day period, but demands more “exacting substantive
requirements.”

See Lavespere v. Niagara Machine & Tool Works,

Inc., 910 F.2d 167, 173-74 (5th Cir. 1990), abrogated on other
grounds, Little v. Liquid Air Corp., 37 F.3d 1069, 1078 (5th Cir.
1994) (en banc).

Because the Court entered the order granting

summary judgment on October 8, 2013, and the plaintiff filed the
motion to reconsider three days later on October 11, 2013, the
motion

is

timely

under

Rule

59(e),

and

such

analysis

is

appropriate.
B.
“A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’”

Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th

Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).

Because of the interest in finality, Rule 59(e)

motions may only be granted if the moving party shows there was a
mistake of law or fact or presents newly discovered evidence that
could

not

have

been

discovered

previously.

Id.

at

478-79.

Moreover, Rule 59 motions should not be used to relitigate old
matters, raise new arguments, or submit evidence that could have
been presented earlier in the proceedings.

See id. at 479;

Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th
Cir. 2010)(“[A] motion to alter or amend the judgment under Rule

4

59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued’”)(citing Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003)(quoting Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)).

The grant of such a motion is an

“extraordinary remedy that should be used sparingly.” Indep. CocaCola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola
Bottling Co. United, Inc., 114 F. App’x 137, 143 (5th Cir. Nov. 11,
2004) (citing Templet, 367 F.3d at 479).

The Court must balance

two important judicial imperatives in deciding whether to reopen a
case in response to a motion for reconsideration: “(1) the need to
bring the litigation to an end; and (2) the need to render just
decisions on the basis of all the facts.”

Templet, 367 F.3d at

479.
II.

Discussion
A.

The plaintiff requests the Court reconsider its judgment
because counsel committed a "clerical error."

Plaintiff's counsel

now says that his paralegal mistakenly filed the replica opposition
memorandum.

Counsel

insists

he

prepared

a

new

opposition

memorandum, and that he even submitted the correct memorandum when
he

first

attempted

to

respond;

however,

because

his

first

submission was marked deficient, the correct memorandum was never

5

properly filed with the Court.

Counsel notes that he did properly

file various exhibits, including affidavits from several witnesses,
which he alleges demonstrate genuine issues of material fact.
Accordingly, counsel contends reconsideration is necessary in order
to avoid a substantial injustice to his client.
The

defendant

opposes

reconsideration,

contending

that

counsel's error is not grounds for amending the judgment.

The

defendants maintain that no genuine issue of material fact exists
and that the Court properly granted summary judgment.
B.
Under Federal Rule 56, summary judgment is appropriate where
"the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law."

Fed. R. Civ. P. 56(a).

summary

judgment

motion

must

Under Rule 56©, a party opposing a
"cit[e]

to

particular

parts

of

materials in the record" to show that a genuine issue exists.

If

the party opposing the motion fails to properly show a fact, the
Court may "give an opportunity to properly support or address the
fact," or it may "consider the fact undisputed for the purposes of
the motion."

Fed. R. Civ. P. 56(e).

In Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653,
656 (5th Cir. 1979), in considering a previous version of Rule 56©,
the Fifth Circuit held that although counsel did not directly bring
to the district judge's attention a deposition filed in the record

6

that created a genuine factual dispute, the Court could not ignore
the deposition in ruling on a motion for summary judgment.
court

reasoned

that

"[Rule

56]

does

not

distinguish

The

between

depositions merely filed and those singled out by counsel for
special attention."

However, in Skotak v. Tenneco Resins, Inc.,

953 F.2d 909, 915 (5th Cir. 1992), the Fifth Circuit held that
although evidence precluding summary judgment appeared elsewhere in
the record, because the plaintiffs failed to refer to that evidence
in their response to the summary judgment motion, that evidence was
not properly before the court for purposes of that motion.

In

Skotak, the court called into question the continued vitality of
Higgenbotham.

Id. at 915 n.7.

And in Malarca v. Garber, 353 F.3d

393, 405 (5th Cir. 2003), the court reiterated that when a party
fails to refer to evidence in the record in its response to the
motion for summary judgment, that evidence is not properly before
the district court.

Accordingly, it is now well settled that Rule

56 does not impose a duty upon the district judge to search through
the record for evidence in support of a party's position regarding
summary judgment.

Id.; see also United States v. Dunkel, 927 F.2d

955, 956 (7th Cir. 1991)("Judges are not like pigs, hunting for
truffles buried in briefs.").
Here, the plaintiff contends that when the Court considered
the defendants' motion for summary judgment, it had before it
various

exhibits

including

four

7

affidavits

submitted

by

the

plaintiff.

The

considered

alone

plaintiff
and

even

contends
without

that

the

these

affidavits,

necessary

memorandum,

established genuine issues of material fact regarding whether the
decedent, Clint Coste, was speeding, and whether the defendant,
Otis Jackson, stopped in the neutral ground before proceeding into
the northbound lanes of Almonaster Avenue.

In its order granting

summary judgment, the Court explicitly referenced one affidavit,
from the decedent's brother, Corey Coste, and determined that
Coste's affidavit was and is inadmissible.

The plaintiff also

produced two affidavits from untimely identified witnesses, Frank
Williams and Troy James, who did not even witness the accident but
who, remarkably, speculated that the decedent may not have been
speeding.

But more importantly, one affidavit was put in from a

timely identified witness, Charain Nolan, who did witness the
accident, could not say whether the decedent was speeding, but who
swore that Jackson did not stop in the neutral ground.
Based

on

Nolan's

affidavit

alone,

however,

even

without

assistance from counsel, the Court could have found that a genuine
issue of material fact existed regarding whether Jackson stopped in
the neutral ground.

In fact, the Court explicitly acknowledged

that summary judgment would not have been appropriate but for
counsel's failure.1 Recognizing "the need to render just decisions

1

Notwithstanding the arguable weakness of the plaintiff's
submissions and the apparent ineffectiveness of some so-called
witnesses, the Nolan affidavit saves the day with regard to the
8

on the basis of all the facts," see Templet, 367 F.3d at 479, the
Court reconsiders its previous order.
The Court does not do so lightly, and recognizes the resulting
inconvenience to the defendants.

See id.

However, because there

is no evidence of bad faith on the part of the plaintiff, and
because the plaintiff promptly filed the motion to reconsider, the
prejudice to the defendants is minimal.

See Blois v. Friday, 612

F.2d 938, 940 (5th Cir. 1980).
Nevertheless, although plaintiff's counsel may not have acted
in bad faith, this is not the first time he has behaved negligently
in this case. Counsel has submitted over a dozen deficient filings
and missed multiple deadlines.

Most strikingly, counsel failed to

timely file a jury demand, and as a result, the plaintiff was
forced to waive her right to a jury trial.

Counsel should make no

mistake that the Court reconsiders its order in the interest of
fairness

to

the

minor

plaintiff

only.

Counsel's

repeated

inattentive conduct has wasted the valuable time and resources of
both the defendants and this Court.

The Court assesses the costs

of all proceedings related to this motion to plaintiff's counsel.2
Moreover, the Court orders that counsel shall serve a copy of this
Order and Reasons on his client and confirm in writing he has done
so. Finally, while the Court grants reconsideration and now denies

Court's prior summary dismissal.
2

See 28 U.S.C. § 1927.
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summary judgment, it emphasizes that the case will be reopened only
for a pretrial conference and the trial.

No other deadlines will

be reset.
Accordingly, IT IS ORDERED: that the plaintiff's motion for
reconsideration is GRANTED.

IT IS FURTHER ORDERED: that the

Court's October 8, 2013 Order & Reasons is amended to reflect the
finding that the defendants' motion for summary judgment is DENIED
for the reasons herein. All costs related to this motion are
assessed to plaintiff's counsel.

A new scheduling order resetting

the pretrial and trial dates only shall issue. All pending motions
in limine are continued to the morning of trial.
New Orleans, Louisiana, November 13, 2013

____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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