Mercato Elisio, LLC v. Deveney et al

Filing 98

ORDER AND REASONS denying 75 Motion by Mercato Eliso, LLC for Reconsideration. Signed by Judge Sarah S. Vance on 2/15/17. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MERCATO ELISIO, LLC
VERSUS

CIVIL ACTION
NO. 15-563

JOHN DEVENEY, DEVENEY
COMMUNICATION CONSULTING,
LLC, AND CHRIS COSTELLO

SECTION “R” (1)

ORDER AND REASONS
Plaintiff Mercato Elisio, LLC moves for reconsideration1 of the Court’s
order2 granting summary judgment in favor of defendants John Deveney,
Deveney Communication Consulting, LLC, and Chris Costello. In its order,
the Court found that all of Mercato’s claims were barred by prescription.3
Mercato now moves for reconsideration of that order under Federal Rule of
Civil Procedure 59(e). For the following reasons, Mercato’s motion is denied.
A district court has considerable discretion to grant or to deny a motion
under Rule 59(e). See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355
(5th Cir. 1993).

A court’s reconsideration of an earlier order is an

extraordinary remedy, which should be granted sparingly. See Fields v. Pool

1
2
3

R. Doc. 75.
R. Doc. 72.
Id.

Offshore, Inc., 1998 WL 43217, *2 (E.D. La. Mar. 19, 1998); Bardwell v.
George G. Sharp, Inc., 1995 WL 517120, *1 (E.D. La. Aug. 30, 1995). The
Court must “strike the proper balance between the need for finality and the
need to render a just decision on the basis of all the facts.” Edward H. Bohlin
Co., 6 F.3d at 355. A 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; and (4) the motion is justified by an
intervening change in the controlling law. See Fidelity & Deposit Co. of Md.
v. Omni Bank, 1999 WL 970526, *3 (E.D. La. Oct. 21, 1999); Fields, 1998 WL
43217 at *2.
The bulk of Mercato’s motion for reconsideration is devoted to a
lengthy factual background and statement of applicable law. Mercato’s
argument section advances two theories: (1) reconsideration is appropriate
because of “new evidence”; and (2) reconsideration is necessary to prevent
manifest injustice. Both arguments fail.
Mercato’s

“new

evidence”

does

not

provide

grounds

for

reconsideration for two reasons. First, the evidence is not new. The Court
issued its order granting summary judgment on August 8, 2016. Mercato
2

admits that it received all of its “new evidence” before that date,4 but argues
that any evidence it obtained after defendants’ summary judgment motion
was submitted before the Court is new evidence for purposes of
reconsideration. Mercato is wrong; the relevant date is when judgment is
actually entered. See Matador Petroleum Corp. v. St. Paul Surplus Lines
Ins. Co., 174 F.3d 653, 658 n.1 (5th Cir. 1999) (“Matador's failure to explain
why the evidence was not available prior to the district court’s grant of
summary judgment constitutes a valid basis for denying Matador’s Motion
for Reconsideration.”); Russ v. International Paper Co., 943 F.2d 589, 593
(5th Cir. 1991) (noting that “the unexcused failure to present evidence [that]
is available at the time summary judgment is under consideration
constituted a valid basis for denying a motion to reconsider”); see also 11

See R. Doc. 75-2 at 15-16. Mercato attaches eight exhibits to its
motion—seven depositions and one compendium of documents produced by
defendants in discovery in this case. All seven depositions were taken before
the Court’s August 8, 2016 order granting summary judgment: (1)
Deposition of Jennifer Zurik, taken on July 22, 2016; (2) Deposition of
Wayne Troyer, taken on July 22, 2016; (3) Deposition of Sean B. Cummings,
taken on June 30, 2016; (4) Deposition of John J. Deveny III, taken on July
28, 2016; (5) Deposition of Christopher Costello, taken on July 29, 2016; (6)
Deposition of Eva Campos, taken on July 20, 2016; and (7) Deposition of
John Deveny, taken on February 20, 2014. The remaining exhibit is a
collection of documents that Mercato describes as produced in discovery in
this case. R. Doc. 76-6; R. Doc. 76-11. Mercato does not maintain that it
received any of these documents after August 8.

4

3

Wright & Miller, Fed. Prac. & Proc. § 2810.1 (3d ed.) (“The Rule 59(e) motion
may not be used to relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of judgment.”
(emphasis added)).
Even if Mercato’s evidence were new, it does nothing to disturb the
Court’s reasons for granting summary judgment.

The Court based its

prescription finding largely on Mercato’s own words. The order quotes
letters from Mercato’s attorneys alleging that John Deveny has an “obvious
conflict of interest,” that Deveny Communications had performed work for
the FMIA, and “that the Historic District Landmarks Commission . . . may
have violated the due process rights of Mercato Elisio LLC.”5 Defendants
argue in essence that their “new evidence” provides even stronger proof of
the purportedly improper connection between John Deveny, Deveny
Communications, Chris Costello, and the Historic District Landmarks
Commission. But that Mercato knows more now cannot erase what it knew
years before filing its claim: (1) the text of John Deveney’s letter to the HDLC
commissioners, and (2) the connections between Deveney, Deveney
Communications, and the FMIA.

5

R. Doc. 72 at 16-17.
4

Finally, the Court finds that Mercato has made no compelling showing
that reconsideration is necessary to prevent manifest injustice. Mercato
devotes only three sentences to its manifest injustice argument, and it cites
no authority.

The crux of the argument is that defendants withheld

information that should have been produced in a 2013 public records
request.

But this Court found that Mercato’s claims were prescribed

precisely because of what Mercato did know, and particularly because of
information Mercato received in the purportedly incomplete response to
Mercato’s public records request.

Mercato does not to explain how

defendants’ alleged stonewalling years before this Court’s summary
judgment order was issued makes failing to reconsider that order a manifest
injustice.
For these reasons, Mercato Eliso, LLC’s motion for reconsideration is
DENIED.

15th
New Orleans, Louisiana, this _____ day of February, 2017.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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