Kimberly Lewis v. Noble Drilling Services, Inc., et al

Filing 35

ORDER AND REASONS - The Plaintiffs 28 motion for reconsideration is GRANTED and the Defendants 33 cross-motion for reconsideration is DENIED. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIMBERLY LEWIS,
Plaintiff

CIVIL ACTION

VERSUS

No. 15-1018

NOBLE DRILLING SERVICES,
INC. AND NOBLE SERVICES
INTERNATIONAL, LTD.
Defendants

SECTION “E” (4)

ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Reconsideration 1 and Defendants’ Cross
Motion for Reconsideration. 2 The Court has reviewed the briefs, 3 the record, and the
applicable law, and now issues this order and reasons.
On July 19, 2016, the Court granted Defendants’ motion to dismiss Plaintiff’s
claims for nonpecuniary damages 4 pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. 5 After finding that the Death on the High Seas Act (“DOHSA”) does not apply,
the Court held that nonpecuniary damages, including damages for the pre-death pain and
suffering of Palmer Lewis, are not recoverable under the Jones Act and the general
maritime law.
In the Plaintiff’s motion, she asks the Court to reconsider its ruling that
nonpecuniary damages for Mr. Lewis’ pre-death pain and suffering are not recoverable
under the Jones Act. In the Defendants’ cross motion, they ask the Court to reconsider its
ruling that DOHSA does not apply to this claim.

R. Doc. 28.
R. Doc. 33.
3 R. Docs. 28-1 and 33-1.
4 R. doc. 17.
5 R. Doc. 27.
1

2

1

A motion for reconsideration pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure “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.” 6 A motion for reconsideration,
however, “is ‘not the proper vehicle for rehashing evidence, legal theories, or arguments
that could have been offered or raised before the entry of [the order].’” 7 “The Court is
mindful that ‘[r]econsideration of a judgment after its entry is an extraordinary remedy
that should be used sparingly.’” 8 “When there 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.” 9
In deciding motions under the Rule 59(e) standards, the courts in this district have
considered the following factors:
(1) whether the movant demonstrates the motion is necessary to correct
manifest errors of law or fact upon which the judgment is based;
(2) whether the movant presents new evidence;
(3) whether the motion is necessary in order to prevent manifest injustice;
and
(4) whether the motion is justified by an intervening change in the
controlling law. 10
In support of their motion for reconsideration, the Defendants rely on arguments

6 Schiller v. Physicians Resource Group Inc., 342 F.3d 563, 567 (5th Cir.2003) (citations omitted) (internal
quotation marks omitted).
7 Lacoste v. Pilgrim Int’l, 2009 WL 1565940, at *8 (E.D. La. June 3, 2009) (Vance, J.) (quoting Templet v.
HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004)).
8 Castrillo, 2010 WL 1424398, at *4 (alteration in original) (quoting Templet, 367 F.3d at 479).
9 Lightfoot v. Hartford Fire Ins. Co., No. 07-4833, 2012 WL 711842, at *3 (E.D. La. Mar. 5, 2012) (Brown,
J.).
10 Castrillo, 2010 WL 1424398, at *4. The Court notes that the time limits of Rule 59 do not apply in this
matter because the order appealed is interlocutory. Rules 59 and 60 set forth deadlines for seeking
reconsideration of final judgments. See Carter v. Farmers Rice Milling Co., Inc., 33 F. App’x 704 (5th Cir.
2002); Lightfoot, 2012 WL 711842, at *2.

2

made by the Plaintiff in her memorandum in support of her motion for reconsideration,
which they say contains a new interpretation of the allegations in the Complaint. 11 When
deciding the motion to dismiss, the Court correctly considered only the allegations of the
complaint and found that DOHSA did not apply. 12 The Court cannot consider the
arguments of counsel for Plaintiff in deciding a motion to dismiss. The Defendants have
not established any of the circumstances under which reconsider is warranted and their
motion for reconsideration is denied.
The Plaintiff argues that reconsideration of the Court’s order is necessary to correct
a manifest error of law and to prevent manifest injustice because pre-death pain and
suffering are recoverable under the Jones Act. 13 The Court agrees with the Plaintiff to the
extent that she argues pre-death pain and suffering are recoverable under the Jones Act
in the Fifth Circuit. 14 Plaintiff’s motion for reconsideration is granted and Defendants’
motion to dismiss 15 is denied insofar as it sought dismissal of Plaintiff’s claim for the predeath pain and suffering of Mr. Lewis.
Accordingly, the Plaintiff’s motion for reconsideration is GRANTED and the
Defendants’ cross-motion for reconsideration is DENIED.
New Orleans, Louisiana, this 20th day of September, 2016.
_____________________ __________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 33-1 at 2.
R. Doc. 27 at 5.
13 R. Doc. 28-1 at 2.
14 De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138,141 (5th Cir. 1986).
15 R. Doc. 17.
11

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