Ferraro et al v. Liberty Mutual Insurance Company et al

Filing 41

ORDER denying 37 Motion to Alter Judgment; denying 37 Motion for Reconsideration. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RON FERRARO, et al.

CIVIL ACTION

VERSUS

NO. 13-4992

LIBERTY MUTUAL INSURANCE CO., et al.

SECTION: “G”(2)

ORDER
Before the Court is Ron Ferraro and Patricia Ferraro’s (collectively, “Plaintiffs”) “Motion
to Alter or Amend the Judgment, or Alternatively Reconsideration of Summary Judgment,”1 wherein
they seek amendment or reconsideration of the Court’s July 10, 2014 Order2 granting Defendant
Liberty Mutual Fire Insurance Company’s (“Liberty Mutual”) Motion for Summary Judgment.3
A.

Standard of Review on Motion for Reconsideration
Although the Fifth Circuit has noted that the Federal Rules “do not recognize a ‘motion for

reconsideration’ in haec verba,”4 it has consistently recognized that such a motion may challenge
a judgment or order under Federal Rules of Civil Procedure 54(b), 59(e), or 60(b).5 Such a motion
“calls into question the correctness of a judgment,”6 and courts have considerable discretion in
deciding whether to grant such a motion.7 In exercising this discretion, courts must carefully

1

Rec. Doc. 37.

2

Rec. Doc. 34.

3

Rec. Doc. 21.

4

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990).

5

Id. (Rules 59 and 60); Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398, at *3-4
(E.D. La. Apr. 5, 2010) (Vance, C.J.) (Rule 54).
6

Tex. Comptroller of Pub. Accounts v. Transtexas Gas Corp. (In re Transtexas Gas Corp.), 303 F.3d 571, 581
(5th Cir. 2002).
7

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).

balance the interests of justice with the need for finality.8 Courts in the Eastern District of Louisiana
have generally considered four factors in deciding motions for reconsideration, which are typically
decided under the Rule 59(e) standard:
(1) the motion is necessary to correct a manifest error of law or fact upon which the
judgment is based;
(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 controlling law.9
A motion for reconsideration, “‘[is] not the proper vehicle for rehashing evidence, legal
theories, or arguments. . . .’”10 Instead, such motions “serve the narrow purpose of allowing a party
to correct manifest errors of law or fact or to present newly discovered evidence.”11 “It is well
settled that motions for reconsideration should not be used . . . to re-urge matters that have already
been advanced by a party.”12 Reconsideration, therefore, is not to be lightly granted, as
“[r]econsideration of a judgment after its entry is an extraordinary remedy that should be used
sparingly”13 and the motion must “clearly establish” that reconsideration is warranted.14 When there

8

Id. at 355-56.

9

See, e.g., Castrillo, 2010 WL 1424398, at *4 (citations omitted).

10

Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)).

11

See Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989).

12

Helena Labs., 483 F. Supp. 2d at 539 (citing Browning v. Navarro, 894 F.2d 99, 100 (5th Cir. 1990)).

13

Templet, 367 F.3d at 478-79 (citation omitted).

14

Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir. 2003).

2

exists no independent reason for reconsideration other than mere disagreement with a prior order,
reconsideration is a waste of judicial time and resources and should not be granted.15
B.

Analysis
Plaintiffs contend that the Court’s Order granting Liberty Mutual’s Motion for Summary

Judgment16 should be altered or amended because of “newly discovered evidence that was not
presented at trial,” namely, “an email from Plaintiffs’ [sic] to Liberty Mutual’s adjuster dated
November 2, 2012.”17 According to Plaintiffs,
In that email, Plaintiff, Mr. Ronald Ferraro, advises Liberty Mutual that he and his
wife will need to file a supplemental claim and specifically asks “[a]re there any
special forms we need to file for the supplement of work.” Additionally, in that
November 2, 2012, email, Mr. Ferraro explained to Liberty Mutual why they needed
additional funds to repair the flood damaged flooring in their home. In response to
Plaintiffs’ inquiry about making a supplemental claim, Liberty Mutual responded to
Plaintiffs as follows: “No special forms for the supplement. Just send the info that
you have from Inspector 21 and I will be able to let you know if it will be ok, then
I can do a supplement.18
Plaintiffs contend that this email demonstrates that “Liberty Mutual specifically advised Plaintiffs
that they did not need to use any ‘special forms for the supplement.’”19 Additionally, Plaintiffs aver
that the email, “upon which they relied, is the reason that Plaintiffs continued to submit information

15

Livingston Downs Racing Ass’n v. Jefferson Downs Corp., 259 F.Supp. 2d 471, 481 (M.D. La. 2002). See
also Mata v. Schoch, 337 BR 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was
presented). See also FDIC v. Cage, 810 F.Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion
merely disagreed with the court and did not demonstrate clear error of law or manifest injustice).
16

Rec. Doc. 34.

17

Rec. Doc. 37-1 at p. 2 (citing Rec. Doc. 37-2). The Court notes that no trial has commenced in this case.

18

Id. at pp. 2–3 (emphasis in original) (citing Rec. Doc. 37-2).

19

Id. at p. 3.

3

on their claim, including, [sic] estimates, photographs, etc, in the manner that they did, believing the
advices [sic] of Liberty Mutual, that they were in compliance with the terms of their policy.”20
An “unexcused failure to present evidence available at the time of summary judgment
provides a valid basis for denying a subsequent motion for reconsideration.” 21 In Reeves v. Wells
Fargo Home Mortg., the Fifth Circuit found that a district court did not abuse its discretion in not
treating as newly discovered a copy of an unendorsed Deed of Trust and a Promissory Note because
the plaintiff alleged that she received it before litigation began.22 Similarly, in Templet v.
HydroChem, Inc., the Fifth Circuit held that the district court’s decision to deny reconsideration was
not manifestly unjust in law or fact, nor did it ignore newly discovered evidence, where “the
underlying facts were well within the [Plaintiffs’] knowledge prior to the district court’s entry of
judgment. However, the [Plaintiffs] failed to include these materials in any form of opposition or
response to the Defendants’ motion for summary judgment.”23

20

Id.

21

Reeves v. Wells Fargo Home Mortgage, 544 F. App’x 564, 570 (5th Cir. 2013) cert. denied, 134 S. Ct. 2668,
(U.S. 2014) (citing Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004)).
22

Id.

23

Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).

4

Here, Plaintiffs offer no reason why the email at issue could not have been presented earlier
in opposition to Liberty Mutual’s motion for summary judgment. Plaintiffs themselves acknowledge
that the email chain “was exchanged between them and Liberty Mutual.”24 As in Reeves and
Templet, the allegedly “newly discovered evidence” appears to have been within Plaintiffs’
knowledge and possession prior to the Court’s entry of judgment on July 10, 2014.25
Accordingly,
IT IS ORDERED that Plaintiffs’ “Motion to Alter or Amend the Judgment, or
Alternatively Reconsideration of Summary Judgment,”26 is DENIED.

NEW ORLEANS, LOUISIANA, this ______ day of October, 2014.

________________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

24

Rec. Doc. 37-1 at p. 2.

25

Rec. Doc. 34.

26

Rec. Doc. 37.

5