Gressett v. New Orleans City et al

Filing 45

ORDER AND REASONS denying 36 Motion for New Trial; denying 37 Motion for New Trial; denying 40 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Sarah S. Vance on 2/6/2019. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANDREW GRESSET

CIVIL ACTION

VERSUS

NO. 17-16628

CITY OF NEW ORLEANS, ET AL.

SECTION “R” (2)

ORDER AND REASONS
Before the Court are plaintiff Andrew Gressett’s motions to: (1) alter or
amend the Court’s judgment dismissing his claims and denying leave to
amend his complaint, and (2) set aside the Magistrate Judge’s order denying
plaintiff’s request for subpoenas. Because Gressett has failed to establish
either a manifest error or present newly discovered evidence, the Court
denies his motion to alter or amend the judgment. Because the Magistrate
Judge’s order was not clearly erroneous or contrary to law, the Court denies
his motion to set aside the Magistrate Judge’s order.
I.

BACKGROUND
This case arises out of alleged constitutional violations by a New

Orleans Police Department (NOPD) officer.

Plaintiff alleges that, on

November 11, 2016, an unidentified NOPD officer made “anti-Trump” and
“pro-Black” statements, including that, “[a]nyone that voted for Donald

Trump is a racist,” at a Waffle House in New Orleans. 1 Plaintiff further
alleges that, on December 14, 2016, he was leaving the same Waffle House in
New Orleans when he noticed the same unidentified officer “lying in wait”
outside of the restaurant, standing between plaintiff and his vehicle.2 The
unidentified officer was allegedly standing with one hand on his holstered
revolver and the other on his holstered Taser.3 Plaintiff alleges that he
stepped aside in an attempt to avoid the officer, but that the officer stepped
into his path and said, “[y]ou’re still being an [a]sshole.”4 Plaintiff alleges he
felt threatened and detained by the officer, but proceeded to his vehicle
without issue.5
Plaintiff brought suit against the City of New Orleans, the unidentified
officer, and other unidentified law enforcement officers on December 11,
2017.6 The complaint asserts claims for violations of “federal civil rights
statutes” and for negligence.7 On March 26, 2018, the City moved to dismiss
the complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and

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4
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R. Doc. 1 at 4-5.
Id. at 5.
Id.
Id.
Id.
R. Doc. 1.
Id. at 2, 8-11.
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12(b)(6).8 Before responding to the City’s motion to dismiss, plaintiff sought
leave to amend his complaint. 9 The Magistrate Judge denied this motion on
May 2, 2018. 10 On August 1, 2018, the Court granted the City’s motion to
dismiss and affirmed the Magistrate Judge’s decision denying leave to
amend. 11 It therefore dismissed plaintiff’s complaint with prejudice. 12
On August 24, 2018, plaintiff filed a motion seeking issuance of a
subpoena, which the Magistrate Judge denied because plaintiff’s case had
already been dismissed.13 Plaintiff now seeks review of the Magistrate
Judge’s denial of the subpoena, 14 and he also seeks review under Federal
Rule of Civil Procedure 59 of the Court’s order dismissing his case and
denying leave to amend. 15 The City opposes the motions. 16

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9
10
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14
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R. Doc. 7.
R. Doc. 12.
R. Doc. 20.
R. Doc. 33.
R. Doc. 34.
R. Doc. 35; R. Doc. 39.
R. Doc. 40.
R. Doc. 36; R. Doc. 37.
R. Doc. 42.
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II.

DISCUSSION
A.

Motion to Alter or Amend the Judgment

Motions seeking review of a previous order disposing of the case are
treated as Rule 59(e) motions to alter or amend the judgment. See Ford
Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994). A district court
has considerable discretion to grant or deny a motion under Federal Rule of
Civil Procedure 59(e). See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350,
355 (5th Cir. 1993). The Court must “strike the proper balance between two
competing imperatives: (1) finality, and (2) the need to render just decisions
on the basis of all the facts.”

Id.

Reconsideration, however, “is an

extraordinary remedy that should be used sparingly.”

Templet v.

HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004); see also Fields v. Pool
Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998),
aff’d, 182 F.3d 353 (5th Cir. 1999).
To succeed on a Rule 59(e) motion, therefore, a party must “clearly
establish either a manifest error of law or fact or must present newly
discovered evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005).
Rule 59(e) motions are “not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry
of judgment.” Templet, 367 F.3d at 478-79. “A motion to reconsider based
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on an alleged discovery of new evidence should be granted only if (1) the facts
discovered are of such a nature that they would probably change the
outcome; (2) the facts alleged are actually newly discovered and could not
have been discovered earlier by proper diligence; and (3) the facts are not
merely cumulative or impeaching.” Ferraro v. Liberty Mut. Fire Ins. Co.,
796 F.3d 529, 534 (5th Cir. 2015) (quoting Johnson v. Diversicare Afton
Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010)).
The Court has reviewed Gressett’s motions for reconsideration and
finds that they do not demonstrate a manifest error of law or fact, nor do they
present newly discovered evidence. To the contrary, they merely rehash the
legal arguments considered in the Court’s order on the defendants’ motion
to dismiss. The documents he cites as new evidence were either available to
Gressett when he responded to defendants’ motion to dismiss and sought to
amend his complaint, or they contain no information relevant to the
disposition of his claims.

Gressett’s motions for reconsideration are

therefore denied.
B.

Motion to Set Aside Magistrate Judge’s Order

A magistrate judge’s ruling on a non-dispositive civil motion may be
appealed to the district court. Fed. R. Civ. P. 72(a). When a timely objection
is raised, the district judge must review the magistrate judge’s ruling and
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“modify or set aside any part of the order that is clearly erroneous or contrary
to law.” Id. The court reviews the magistrate judge’s “‘factual findings under
a clearly erroneous standard,’ while ‘legal conclusions are reviewed de
novo.’” Moore v. Ford Motor Co., 755 F.3d 802, 806 (5th Cir. 2014) (quoting
Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993)). A factual
finding is clearly erroneous when “although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”

United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948). A legal conclusion is contrary to law
“when the magistrate fails to apply or misapplies relevant statutes, case law,
or rules of procedure.” Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016
WL 890406, at *2 (E.D. La. Mar. 9, 2016); Bruce v. Hartford, 21 F. Supp. 3d
590, 594 (E.D. Va. 2014) (“For questions of law there is no practical
difference between review under Rule 72(a)’s contrary to law standard and a
de novo standard.” (internal quotations and modifications omitted)).
The Magistrate Judge correctly denied plaintiff’s request for a
subpoena because plaintiff’s claims had already been dismissed when he
requested the subpoena. Federal Rule of Civil Procedure 45(a)(2) provides
that “[a] subpoena must issue from the court where the action is pending.”
The Court could not issue plaintiff’s subpoena because his action was not
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pending when he submitted his request.17 In addition, plaintiff’s request for
the subpoena was futile. The video that plaintiff seeks depicts the Waffle
House incident to which plaintiff refers in his complaint. 18 The plaintiff
already had the opportunity to allege any illegal behavior related to this
incident in his complaint, and the Court took those allegations as true for the
purpose of evaluating defendant’s motion to dismiss. See Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (courts must “accept all
factual allegations in the complaint as true” when ruling on a motion to
dismiss). Therefore, even if the subpoenaed video depicted the Waffle House
incident exactly as plaintiff describes it, he has still failed to state a claim
against defendants. Because the Court is not authorized to issue a subpoena
in a dismissed case, and because the subpoena would have been futile, the
Court finds no error in the Magistrate’s decision.

See R. Doc. 34.
R. Doc. 40-1 at 3 (“The Petitioner seeks . . . to obtain via subpoena
and present to the District court the videotapes of the two Waffle House
incidents involving the Petitioner . . . .”).
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17

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CONCLUSION
For the foregoing reasons, plaintiff’s motions are DENIED.

6th
New Orleans, Louisiana, this _____ day of February, 2019.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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