Tucker v. Unitech Training Academy et al

Filing 51

ORDERED that 48 Motion to Set Aside is denied, and Plaintiff's claims against Defendant Unitech Training Academy, Inc. remain dismissed without prejudice. Signed by Judge Carl Barbier on 4/5/2017. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ANDREA TUCKER

CIVIL ACTION

VERSUS

No. 15-7133

UNITECH TRAINING ACADEMY,
INC. ET AL.

SECTION: “J”(2)

ORDER
Before the Court is Plaintiff Andrea Tucker’s Motion to Set
Aside (R. Doc. 48) and an opposition thereto filed by Defendant
Unitech Training Academy, Inc. (R. Doc. 50). In short, Plaintiff
seeks to set aside this Court’s order dismissing Defendant Unitech
Training Academy, Inc. (“Defendant”) without prejudice. (R. Doc.
45.) On February 22, 2017, a Scheduling Conference was set between
Plaintiff and Defendants. (R. Doc. 44.) This Scheduling Conference
was cancelled after the Court determined that the Defendant had
not been properly served. (R. Doc. 44.) Plaintiff’s case was then
set on the Court’s Call Docket for March 15, 2017, with a warning
to Plaintiff’s counsel that a failure to appear would result in
Defendant

being

dismissed.

(R.

Doc.

44.)

On

March

15,

2017,

Plaintiff’s counsel failed to appear and Defendant was dismissed
without prejudice. (R. Doc. 45.)
On March 23, 2017, Plaintiff filed the instant motion to set
aside the dismissal of Defendant. (R. Doc. 48.) Plaintiff’s counsel

argues that she mistakenly entered the date for the Call Docket as
March 17, 2017 in her planner. (R. Doc. 48 at 1.) Plaintiff’s
counsel asserts that Defendant will not be prejudiced by the
dismissal being set aside under Federal Rule of Civil Procedure
59, but that Plaintiff will be severely prejudiced if the judgment
is not set aside.
The Federal Rules of Civil Procedure do not expressly allow
motions for reconsideration of an order. Bass v. U.S. Dep't of
Agric., 211 F.3d 959, 962 (5th Cir. 2000). However, the Fifth
Circuit has consistently recognized that parties may challenge a
judgment or order under Federal Rules of Civil Procedure 54(b),
59(e), or 60(b). S. Snow Mfg. Co., Inc. v. Snowizard Holdings,
Inc., 921 F. Supp. 2d 548, 563-64 (E.D. La. 2013); 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). Rules 59 and 60, however, apply
only to final judgments. Snowizard, 921 F. Supp. 2d at 563-564.
“Therefore, when a party seeks to revise an order that adjudicates
fewer than all the claims among all of the parties, Federal Rule
of Civil Procedure 54(b) controls.” Id. (citing Halena Labs. Corp.
v. Alpha Sci. Corp., 483 F. Supp. 2d 538 (E.D. Tex. 2007)).
The general practice of courts in this district has been to
evaluate Rule 54(b) motions to reconsider under the same standards
that govern Rule 59(e) motions to alter or amend a final judgment.
2

Reyes v. Julia Place Condominiums Homeowners Ass'n, Inc., No. 122043, 2016 WL 4272493, at *3 (E.D. La. Aug. 15, 2016); Snowizard,
921 F. Supp. 2d at 565. Altering or amending a judgment under Rule
59(e) is an “extraordinary remedy” used “sparingly” by the courts.
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004).
Courts have noted that motions to reconsider or amend a final
or partial judgment are “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;
Snowizard, 921 F. Supp. 2d at 565. Thus, to prevail on a Rule 59(e)
or 54(b) motion, the movant must clearly establish at least one of
four factors: (1) the motion is necessary to correct a manifest
error

of

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 controlling law. Id.
Plaintiff has not asserted that there has been a (1) manifest
error of law, (2) that there is newly discovered or previously
unavailable evidence, or (4) that the controlling law has changed.
Further, any notion of manifest injustice is undermined by this
Court notifying Plaintiff’s counsel that “[f]ailure of plaintiff’s
counsel to appear in person” on March 15, 2017 will result in
Defendant’s dismissal. (R. Doc. 44.) This Court has given Plaintiff
ample opportunity to properly serve Defendant, to no avail. See
3

(R. Doc. 24.) Accordingly, Plaintiff’s motion is denied, and
Plaintiff’s claims against Defendant Unitech Training Academy,
Inc. remain dismissed without prejudice.
New Orleans, Louisiana this 5th day of April, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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