Buisson Creative Strategies, L.L.C. et al v. Roberts et al
ORDER AND REASONS denying 203 Motion for New Trial or to Alter or Amend Judgment. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BUISSON CREATIVE STRATEGIES, LLC,
CHRISTOPHER ROBERTS, ET AL.
ORDER AND REASONS
Before the Court is Plaintiffs’ Motion for New Trial or to Alter or Amend
Judgment (Doc. 203). For the following reasons, the Motion is DENIED.
Plaintiffs Buisson Creative Strategies (“BCS”) and Gregory Buisson
bring this action against Christopher Roberts and Jefferson Parish alleging
numerous constitutional violations. Plaintiff BCS is a business that provides
public relations, advertising, marketing, event management, graphic design,
and consulting services. Prior to November 4, 2015, it had numerous contracts
with Jefferson Parish, including providing services to the Jefferson Parish
Convention and Visitors Bureau, event management services for Lafreniere
Park, and event management services associated with the review stands for
Jefferson Parish’s East Bank Mardi Gras parades. During the fall 2015
primary election for the Jefferson Parish Council, Plaintiffs provided
consulting services to Louis Congemi in his race against incumbent Defendant
Christopher Roberts. BCS produced various commercials for the Congemi
campaign alleging that Roberts was unqualified for office because of, inter alia,
his alleged failure to file income tax returns.
Roberts ultimately won re-election. According to the Complaint, he was
intent on retaliating against Plaintiffs for their role in creating the Congemi
attack ads. Plaintiffs aver that Roberts impermissibly used his legislative
authority to enact Ordinance 25045 (the “Ordinance”), which had the alleged
effect of terminating BCS’s contracts with the Parish and its entities. The
Ordinance provides that any person or firm who has received compensation for
the management or consulting of political campaigns for a candidate for the
council or for Jefferson Parish President during an “election cycle” cannot be
awarded contracts with the Parish regardless of whether a candidate wins or
loses. It also purported to terminate such individual’s existing contracts with
the Parish. Plaintiffs aver that this ordinance is narrowly tailored to target
them and only them. They allege that the ordinance violates the contracts
clause, the First Amendment, equal protection, due process, and the
prohibition on bills of attainder. They seek an injunction prohibiting
enforcement of the Ordinance and damages pursuant to 42 U.S.C. § 1983.
On January 25, 2017, the Court held that Defendant Roberts was
entitled to legislative immunity from Plaintiffs’ claims against him in his
personal capacity. 1 On June 21, 2017, the Court dismissed all of Plaintiffs’
remaining claims because Plaintiffs lacked standing. 2 The Court found that
Plaintiffs could not show that the Ordinance had been enforced against them
or was likely to be enforced against them in the future, and found that the loss
of any contracts with third parties was not fairly traceable to Defendants. On
June 22, 2017, the Court signed a judgment dismissing all claims against
Defendants. 3 The Court amended that judgment on June 26, 2017. 4 The
amendment specified that Plaintiffs’ claims against Defendant Roberts in his
personal capacity were dismissed with prejudice as set forth in the Court’s
January 25, 2017 order and reasons, and that Plaintiffs’ remaining claims were
dismissed without prejudice as set forth in the Court’s June 21, 2017 order and
reasons. The amended judgment was signed and entered on June 26, 2017.
Plaintiffs now move pursuant to Federal Rule of Civil Procedure 59 for a
new trial or to alter or amend the June 22 and June 26 judgments.
LAW AND ANALYSIS
Rule 59 requires that a motion for a new trial or to alter or amend a
judgment be “filed no later than 28 days after the entry of judgment.” 5 “A court
must not extend the time to act” under Rule 59. 6 “The requirement that posttrial motions be filed within the relevant ten day period after entry of judgment
is jurisdictional[; t]he mover’s failure to serve the motion within the ten day
limit deprives the district court of jurisdiction to alter or reconsider its earlier
judgment.” 7 Neither a waiver by the parties nor rule of the district court may
Fed. R. Civ. P. 59(b), (e).
Fed. R. Civ. P. 6(b)(2).
U.S. Leather, Inc. v. H & W P’ship, 60 F.3d 222, 225 (5th Cir. 1995); see also Darouiche v.
Fid. Nat. Ins. Co., 415 F. App’x 548, 551 (5th Cir. 2011) (per curium).
extend the period. 8 In other words, “[a]n untimely motion under Rule 59(e) is
a nullity; the district court may refuse to consider it entirely.” 9
Rule 6 of the Federal Rules of Civil Procedure sets forth the rules for
calculating time periods. When a time period is stated in days, the calculation
excludes the day of the event triggering the period, counts every day including
weekends and holidays, and includes the last day of the period unless it falls
on a weekend or holiday. 10
Plaintiffs’ motion is not timely. Plaintiffs move to alter or amend the
Court’s judgment that was signed and entered on June 26, 2017. 11 The 28-day
period in which to file a Rule 59 motion began on June 27. The 28th day of the
period was July 24, 2017, which was neither a weekend nor a holiday. Plaintiffs
filed their Motion into CM/ECF at 12:03 a.m. on July 25, 2017. 12 Therefore,
Plaintiffs’ Motion was not filed within 28 days of the entry of the judgment it
seeks to alter, and this Court does not have jurisdiction to consider it.
Even if the motion were timely, it also fails on the merits. “[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.” 13 Plaintiffs concede that the Motion advances no
new argument. 14 Therefore the Motion does not satisfy the substantive
U.S. Leather, Inc., 60 F.3d at 225.
Quinn v. Guerrero, 863 F.3d 353, 360 (5th Cir. 2017).
10 Fed. R. Civ. P. 6(a)(1); see also Darouiche, 415 F. App’x at 551 (calculating time).
11 Doc. 203-2 at 1.
12 Doc. 203, Notice of Electronic Filing.
13 Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir. 2010) (quoting
Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir. 2003)) (internal quotations
14 See Doc. 203-2 at 2 (“Plaintiffs fear that their Responses . . . to the Defendants’ Motions
may have buried the lede, so to speak.” (emphasis added)); Doc. 203-2 at 4 (“The parties
Memoranda and Responses adequately addressed the law of standing in the context of 42
requirements of Rule 59. Nor has Plaintiff asserted any of the grounds for relief
allowable under Rule 60(b), in the event the Court were to consider the Motion
as one for relief from judgment. 15
Accordingly, Plaintiffs’ Motion is DENIED.
For the foregoing reasons, Plaintiffs’ Motion for New Trial or to Alter or
Amend Judgment is DENIED.
New Orleans, Louisiana this 24th day of October, 2017.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
U.S.C. § 1983. Here, Plaintiffs feel compelled to reiterate only two guiding principles . . . .”
(emphasis added)); Doc. 203-2 at 9 (“Plaintiffs respectfully seek a new trial and/or to amend
and alter the Amended Judgment (Doc. 195) should be granted for the reasons set forth in
their Opposition to Defendant Roberts’ Motion for Partial Summary Judgment (Doc. 118)
and Opposition to Motion for Judgment (Doc. 189).” (emphasis added)).
15 See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990)
(holding that a motion to reconsider filed after the Rule 59(e) deadline should be treated as
a Rule 60(b) motion for relief from judgment); Fed. R. Civ. P. 60(b).
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