Gilbert v. Cates et al
Filing
88
ORDER: ORDERED that the Plaintiff's 71 Motion for Reconsideration of the Court's Denial of His Motion for Appointment of Counsel is DENIED. Signed by Magistrate Judge Karen Wells Roby. (Reference: all cases)(mp)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEAN E. GILBERT
CIVIL ACTION
VERSUS
NO:
17-04786 c/w
17-12195
SIDNEY H. CATES, IV, ET AL.
SECTION: “H” (4)
ORDER
Before the Court is Plaintiff’s Motion for Reconsideration of the Court’s Denial of His
Motion for Appointment of Counsel (R. Doc. 71). The motion is opposed. R. Doc. 77. The
motion was heard on the briefs.
I.
Background
Plaintiff, Dean Gilbert (“Dean Jr.”), filed this lawsuit contending that his constitutional
rights, 1 Title 42 U.S.C. § 1981, 2 1983, 3 and 1985 4 were violated and alleges state law claims 5 in a
state court succession proceeding involving the death of his mother, Bernadette Gaines Gilbert.
The facts of this dispute were previously set out in detail by the Court and are incorporated herein
by reference. See R. Doc. 75.
1
Gilbert contends that the defendants violated his Civil Rights in violation of the First Amendment
(protecting the free exercise of religion, speech and press, assembly, and petition for redress of grievances), Fourth
Amendment (protects the right to be secure in your house and papers against search and seizure), Fifth Amendment
(provides for a grand jury, protects against double jeopardy, provides for due process, and against compulsory
witness), Eighth Amendment (protects against excessive bail and cruel and unusual punishment), and Fourteenth
Amendment (protects against laws that abridge the privileges or immunities of citizens, provides for due process
and equal protection).
2
Section 1981 protects the right to make and enforce contracts.
3
Section 1983 provides the right to sue the government for civil rights violations.
4
Section 1985 provides for damages for a conspiracy to interfere with civil rights and failure to report if
conspiracy is known.
5
Gilbert also alleges the following state law violations: (1) malicious prosecution; (2) conspiracy; (3)
retaliation; (4) negligence; and (5) intentional inflection of emotional distress.
The instant motion was filed by the Plaintiff seeking reconsideration of the court’s order
denying his motion for appointment of counsel. R. Doc. 71. He argues that the Court
misapprehends his case, he does not have the resources to present and investigate his case, and any
competent motion regarding his inadequacy puts him in a “Catch-22.” Id. He further argues that
all the evidence will be conflicting testimony and the appointment of counsel will benefit the Court
and further the cause of justice.
The motion is opposed. R. Doc. 77. Defendants Baldwin, Haspel, Burke & Mayer, LLC,
Joel Mendler, and Thomas Cortazzo argue that no exceptional circumstances for the appointment
of counsel exist, the Plaintiff has made no showing of indigence, and has added nothing new to
justify reconsideration.
II.
Standard of Review
The Federal Rules do not recognize a motion for reconsideration, but the Fifth Circuit has
consistently recognized that such a motion may challenge a judgment or order under Federal Rules
of Civil Procedure 54(b), 59(e), or 60(b). Lavespere v. Niagara Mach. & Tool Works, Inc., 910
F.2d 167, 173 (5th Cir. 1990). Rules 59 and 60, however, apply only to final judgments. 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. Fed. R. Civ. P. 54(b). See also, Helena Labs. Corp.
v. Alpha Scientific Corp., 483 F.Supp.2d 538 (motion for reconsideration under Rule 59(e) treated
as under Rule 54(b) because reconsideration of partial summary judgment order was sought and
no final judgment had yet been entered in the case). The Rule states:
[A]ny order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties' rights and
liabilities.
2
Under Rule 54(b), the district court “possesses the inherent procedural power to reconsider,
rescind, or modify an interlocutory order for cause seen by it to be sufficient.” However, this broad
discretion must be exercised sparingly in order to forestall the perpetual reexamination of orders
and the resulting burdens and delays.
Further, the decision of the district court to grant or deny a motion for reconsideration will
only be reviewed for an abuse of discretion. Martin v. H.M.B. Constr. Co., 279 F.2d 495, 496 (5th
Cir. 1960) (citation omitted); See also Garcia v. Woman's Hosp. of Tex., 97 F.3d 810, 814 (5th
Cir. 1996).
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. See, e.g., Castrillo v. Am. Home Mortgage Servicing Co., 2010 WL 1424398, at *3
(E.D. La. Apr. 5, 2010); Rosemond v. AIG Ins., 2009 WL 1211020, at *2 (E.D. La. May 4, 2009).
A Rule 59(e) motion “calls into question the correctness of a judgment,” and courts have
considerable discretion in deciding whether to grant such a motion. In re: Transtexas Gas Corp.,
303 F.3d 571, 581 (5th Cir. 2002). In exercising this discretion, courts must carefully balance the
interests of justice with the need for finality. Courts in the Eastern District of Louisiana have
generally considered four factors in deciding a motion under the Rule 59(e) standard: (1) the
motion is necessary to correct a manifest error of law or fact upon which the judgment is based;
(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.
Motion under Rules 54(b), 59(e), and 60(b), are not the proper vehicle for rehashing
evidence, legal theories, or arguments. Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.
3
1990). Instead, they “serve the narrow purpose of allowing a party to correct manifest errors of
law or fact or to present newly discovered evidence.” Waltman v. Int'l Paper Co., 875 F.2d 468,
473 (5th Cir. 1989). Reconsideration, therefore, is not to be lightly granted, as “[r]econsideration
of a judgment after its entry is an extraordinary remedy that should be used sparingly” and the
motion must “clearly establish” that reconsideration is warranted. Templet v. Hydro Chem Inc.,
367 F.3d 473, 478–79 (5th Cir. 2004).
Moreover, it is well-settled that motions for reconsideration should not be used to raise
arguments that could, and should, have been made before entry of an order or to re-urge matters
that have already been advanced by a party. See Browning v. Navarro, 894 F.2d 99, 100 (5th Cir.
1990). 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. Livingston Downs Racing Ass'n v. Jefferson Downs Corp., 259 F.Supp.2d 471 (M.D. La.
2002). See also Mata v. Schoch, 337 B.R. 138 (S.D. Tex. 2005) (refusing reconsideration where
no new evidence was presented); FDIC v. Cage, 810 F.Supp. 745, 747 (D. Miss. 1993) (refusing
reconsideration where the motion merely disagreed with the court and did not demonstrate clear
error of law or manifest injustice).
III.
Analysis
The Plaintiff seeks reconsideration of the Court’s denial of his motion to appoint counsel
because he thinks that the Court “misapprehends the Plaintiff’s case” and that based on his
allegations, the case is complex. He further argues he does not have the resources necessary to
present and investigate his claim, the evidence will be conflicting testimony, and appointment of
counsel will assist the interest of justice. R. Doc. 71.
4
First, Plaintiff has not directed this Court to any manifest errors of law or fact upon which
the decision to deny appointment of counsel was based. Second, he has not presented any new or
unavailable information that was not included in the original motion. Third, he has not cited to,
nor is the Court aware, of any intervening change in controlling law that would make
reconsideration necessary.
The only major change in this litigation is that since the Court’s denial of the motion to
appoint counsel is that the Court has denied two motions seeking to amend and supplement the
pleadings and which sought to add numerous defendants and claims. R. Docs. 75, 83. As such,
only the originally named defendants remain. 6
The Court, therefore, finds that reconsideration is not warranted as the Plaintiff has not
directed the Court to any manifest error of fact or law. The Plaintiff’s motion is ultimately a
disagreement with the decision of the Court, however, mere disagreement is not an independent
reason for reconsideration. As a result, the Plaintiff’s motion is denied.
IV.
Conclusion
Accordingly,
IT IS ORDERED that the Plaintiff's Motion for Reconsideration of the Court’s Denial
of His Motion for Appointment of Counsel (R. Doc. 71) is DENIED.
New Orleans, Louisiana, this 9th day of August 2018.
KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE
6
The Plaintiff has objected and seeks the District Court’s review of the denials of his motions to amend and
supplement the complaint. R. Docs. 78, 84. The District Court’s review is still pending as of the date of this order.
5
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