Doney et al v. Hammond City, et al
ORDER AND REASONS denying 131 Motion for New Trial. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOEL M. DONEY, ET AL.
HAMMOND CITY, ET AL.
ORDER AND REASONS
NATURE OF MOTIONS AND RELIEF SOUGHT
Before the Court is Plaintiffs’, Joel M. Doney and Kathleen
reconsideration of this Court’s Order granting the “Motion to
Dismiss” filed by Defendant, City of Hammond (Rec. Doc. 122) and
the City of Hammond’s “Opposition to Plaintiff’s Motion for a New
Trial” (Rec. Doc. 133).
For the foregoing reasons, IT IS ORDERED that Plaintiffs’
Motion be DENIED.
FACTS AND PROCEDURAL HISTORY
The Plaintiffs filed their original Complaint on June 15,
2015, alleging that the City, through the Police Department
(“the HPD”), had their vehicles illegally towed on July 4, 2014.
(Rec. Doc. 1 at 5). Named Defendants included the City, the HPD,
and a multitude of towing companies. (Rec. Doc. 1 at 3-4). On
Plaintiffs appear in their individual capacity and in the capacity of
representatives of a class of persons whose vehicles were illegally towed on
July 4, 2014 in the City of Hammond, Louisiana and as representatives of a class
of persons subjected to excessive towing fees and storage charges.
September 22, 2015, Plaintiffs amended their Complaint to
identify certain defendants and to add as defendants the
liability insurance carriers of some of the towing companies.
(Rec. Doc. 3 at 2-5). 2 Plaintiffs moved to file a Second Amended
Complaint on October 13, 2015, stating that they would “have all
proper parties identified and the claims of the plaintiffs
[would] be clearly set forth.” (Rec. Doc. 9-1 at 2). This Court
granted leave to file a Second Amended Complaint on October 19,
2015. (Rec. Docs. 11, 12).
This Court subsequently granted motions to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6)filed by defendants Plaza Insurance
Company (Rec. Doc. 33), Orlin Rogers d/b/a Rogers Towing &
Recovery (Rec. Doc. 55), Darren Phillips (Rec. Doc. 90), Nick
Polisso, Jr. (Rec. Doc. 90), and The Big Wheel, Inc. (Rec. Doc.
90). On December 14, 2015, Bennett’s Towing & Recovery, Inc.
(“Bennett’s”) filed a motion to dismiss similarly based on the
lack of allegations against it (Rec. Doc. 31), which Plaintiffs
opposed by adding additional allegations against Bennett’s
Towing and seeking leave to amend to add those allegations.
(Rec. Doc. 36 at 3). On January 20, 2016, this Court filed its
Order and Reasons as to the opposed motion filed by Bennett’s
Towing, denying it without prejudice and granting Plaintiffs’
On January 29, 2016, Plaintiffs voluntarily dismissed parties
that were incorrectly identified. (Rec. Doc. 58).
request for leave to amend “to the extent requested – as it
pertains to Defendant Bennett[’s Towing,]” but warning that “any
further requests to amend [would] be viewed with disfavor[.]”
(Rec. Doc. 54 at 4). The City filed a motion to dismiss pursuant
to Fed. R. Civ. P. 12(b)(6). (Rec. Doc. 92). Plaintiffs filed
opposition thereto, opposing dismissal of only the allegation
concerning whether the City provided a pre- or post- deprivation
remedy to Plaintiffs. (Rec. Doc. 96). This court granted the
City’s motion to dismiss in its August 11, 2016 Order and
Reasons. Plaintiff’s filed this instant motion on September 8,
STANDARD FOR RECONSIDERING AN ORDER
Fed. R. Civ. P. 59(e) provides: “A motion to alter or amend
a judgment must be filed no later than 28 days after the entry of
the judgment.” Such a motion “is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have
been offered or raised before the entry of judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).
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.” Ferraro v.
Libert Mut. Ins. Co., 2014 WL 5324987 at *1 (E.D. La. Oct. 17,
extraordinary remedy that should be used sparingly. Id. In order
for a party to prevail on a Rule 59(e) motion, it must satisfy one
of the following: “(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; or (4) the motion
is justified by an intervening change in the controlling law.”
Flynn v. Terrebonne Parish Sch. Bd., 348 F. Supp. 2d 769, 771 (E.D.
La. Oct. 17, 2014).
Motion for Reconsideration
The Plaintiffs move for reconsideration on the grounds that
“a new trial should be granted to correct manifest errors of law
and fact and to prevent manifest injustice.” (Rec. Doc. 131-1 at
2). “A motion to alter or amend the judgment under Rule 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.’” Schiller v. Physicians Res. Grp. Inc., 342 F.3d
563, 567-68 (5th Cir. 2003) (quoting Rosenzweig v. Azurix Corp.,
332 F.3d 854, 863-64 (5th Cir. 2003)). “Relief under Rule 59(e) is
also appropriate when there has been an intervening change in the
controlling law.” Id. at 568 (citing In re Benjamin Moore & Co.,
318 F.3d 626, 629 (5th Cir. 2002)).
In Plaintiffs’ Motion, they argue that reconsideration is
appropriate because there is no-post deprivation hearing. However,
Plaintiffs’ argument primarily consists of a series of rhetorical
questions and does not substantively explain why the Court’s order
had manifest errors of law and fact. The Plaintiffs failed to
demonstrate how the Defendant deprived them of their right to a
post-deprivation hearing using cognizable legal authority.
Relief under Rule 59(e) “cannot be used to raise arguments
issued.” Schiller, 342 F.3d at 567 (quoting Rosenzweig, 332 F.3d
at 864). The Plaintiffs argue that the administrative hearing must
be conducted by the City, citing La. R.S. 32:1711(B). Plaintiffs
further sets forth arguments regarding the City’s statements in
Affirmative Defense fifteen. Both of these arguments are based on
facts that could have been made at the time of this Court’s Order
issued on August 11, 2016. (Rec. Doc. 122). As previously stated,
Rule 59(e) does not exist to allow Plaintiffs to rehash arguments
inappropriate and does not meet the Fifth Circuit standard, and
does not arise to a manifest error of law or fact.
Plaintiffs’ Motion for Reconsideration be DENIED.
New Orleans, Louisiana, this 28th day of September, 2016.
SENIOR UNITED STATES DISTRICT JUDGE
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