Simms v. Allstate Insurance Company

Filing 26

ORDER denying 24 Plaintiff's Motion for Reconsideration of the Court's Judgment Dismissing this Matter. Signed by Judge Carl Barbier on 7/10/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

STEPHEN SIMMS

CIVIL ACTION

VERSUS

NO: 13-5028

ALLSTATE INSURANCE COMPANY

SECTION: J

ORDER
Before the Court is Plaintiff's Motion for Reconsideration of
the Court's Judgment Dismissing this Matter (Rec. Doc. 24) and
Defendant's

Opposition

(Rec.

Doc.

25).

Having

considered

the

motion, the parties’ submissions, the record, and the applicable
law, the Court finds that the motion should be DENIED.
The Federal Rules of Civil Procedure do not expressly allow
motions for reconsideration.

Bass v. U.S. Dep’t of Agric., 211

F.3d 959, 962 (5th Cir. 2000). In the Fifth Circuit, a motion for
reconsideration challenging a prior judgment is treated either as
a motion “to alter or amend” under Federal Rule of Civil Procedure
59(e) or a motion for “relief from judgment” under Federal Rule of
Civil Procedure 60(b). Lavespere v. Niagara Mach. & Tool Works,
Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds
by Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994).
The difference in treatment is based on timing. If the motion is
filed within twenty-eight days of the challenged order, then it
falls under Rule 59(e). Id.; FED. R. CIV. P. 59(e). However, if the

motion is filed more than twenty-eight days after the judgment, but
not more than one year after the entry of judgment, it is governed
by Rule 60(b). Id.; FED. R. CIV. P. 60(c). In the present case,
Plaintiff's motion was filed within the twenty-eight (28) day
period, and therefore the motion will be considered under Rule
59(e).
Altering or amending a judgment under Rule 59(e) is an
“extraordinary remedy” used “sparingly” by the courts.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

Templet v.
A motion to

alter or amend calls into question the correctness of a judgment
and is permitted only in narrow situations, “primarily to correct
manifest errors of law or fact or to present newly discovered
evidence.”

Id.; see also Schiller v. Physicians Res. Grp. Inc.,

342 F.3d 563, 567 (5th Cir. 2003).

Manifest error is defined as

“‘[e]vident to the senses, especially to the sight, obvious to the
understanding, evident to the mind, not obscure or hidden, and is
synonymous with open, clear, visible, unmistakable, indubitable,
indisputable,

evidence,

and

self-evidence.’”

In

Re

Energy

Partners, Ltd., 2009 WL 2970393, at *6 (Bankr. S.D. Tex. Sept. 15,
2009) (citations omitted); see also Pechon v. La. Dep't of Health
& Hosp., 2009 WL 2046766, at *4 (E.D. La. July 14, 2009) (manifest
error is one that “‘is plain and indisputable, and that amounts to
a complete disregard of the controlling law’”) (citations omitted).

2

The Fifth Circuit has noted that “such a motion is not the
proper vehicle for rehashing evidence, legal theories, or arguments
that could have been offered or raised before entry of judgment.”
Templet, 367 F.3d at 478-79. Nor should it be used to “re-litigate
prior matters that ... simply have been resolved to the movant’s
dissatisfaction.”

Voisin v. Tetra Technologies, Inc., 2010 WL

3943522, at *2 (E.D. La. Oct. 6, 2010).

Thus, to prevail on a

motion under Rule 59(e), the movant must clearly establish at least
one of three factors: (1) an intervening change in the controlling
law, (2) the availability of new evidence not previously available,
or (3) a manifest error in law or fact.

Schiller, 342 F.3d at 567;

Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (to win a Rule
59(e) motion, the movant “must clearly establish either a manifest
error of law or fact or must present newly discovered evidence”).
In

the

instant

case,

Plaintiff

has

not

cited

to

any

intervening change in the law nor any newly discovered evidence
previously unavailable, and Plaintiff has not clearly established
a manifest error of law or fact. The law is clear that Plaintiff
must submit an additional signed and sworn Proof of Loss in order
to seek additional amounts from his flood insurance company. See
Kidd v. State Farm Fire and Cas. Co., 392 Fed. App'x 241, 243 (5th
Cir. 2010).
Accordingly,

3

IT

IS

HEREBY

ORDERED

that

Plaintiff's

Motion

for

Reconsideration of the Court's Judgment Dismissing this Matter
(Rec. Doc. 24) is DENIED.
New Orleans, Louisiana, this 10th day of July, 2014.

CARL J. BARBIER
UNITED STATES DISTRICT COURT

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