Oalmann v. Slidell Memorial Hospital Foundation

Filing 28

ORDER AND REASONS: DENYING 26 Motion for Reconsideration, as set forth in document. Signed by Judge Barry W Ashe on 10/22/2020. (am)

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ALAN OALMANN

CIVIL ACTION

VERSUS

NO. 20-380

ST. TAMMANY PARISH HOSPITAL
SERVICE DISTRICT NO. 2, DOING
BUSINESS AS SLIDELL MEMORIAL
HOSPITAL

SECTION M (1)

ORDER & REASONS
Before the Court is a motion by plaintiff Alan Oalmann for reconsideration or relief from
judgment under Rule 60 of the Federal Rules of Civil Procedure of this Court’s August 25, 2020
dismissal of this action.1 Defendant St. Tammany Parish Hospital Service District No. 2, doing
business as Slidell Memorial Hospital (the “Hospital”), responds in opposition.2

Having

considered the parties’ memoranda, the record, and the applicable law, the Court issues this Order
& Reasons denying Oalmann’s motion because he was not diligent in locating the allegedly newly
discovered evidence.
I.

BACKGROUND
This matter concerns claims for a hostile work environment and sexual harassment brought

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq. On
October 31, 2018, Oalmann, who was the director of oncology and medical surgery for the
Hospital,3 filed with the Equal Employment Opportunity Commission (“EEOC”) a charge of
discrimination against the Hospital alleging discrimination based on his gender and sexual

1

R. Doc. 26.
R. Doc. 27.
3
R. Doc. 20 at 2.
2

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 2 of 8

harassment as well as retaliation.4 A year later, on October 31, 2019, the EEOC mailed a right-tosue letter (the “Letter”) to Oalmann and his attorney authorizing Oalmann to file suit against the
Hospital.5
On February 4, 2020, Oalmann initiated this civil action, filing suit against the wrong
defendant, the Slidell Memorial Hospital Foundation (the “Foundation”).6 The Foundation moved
to dismiss the complaint arguing that the Hospital, as Oalmann’s employer, was the proper
defendant.7 On April 17, 2020, this Court granted Oalmann leave to file an amended complaint
naming the Hospital as the proper defendant;8 and, on April 23, 2020, Oalmann did so.9
Thereafter, the Hospital filed a motion to dismiss arguing that Oalmann’s Title VII claims
were not timely filed within the applicable 90-day statute of limitations.10 The Hospital argued
that, because the date Oalmann received the Letter was not pleaded in the amended complaint, the
Court should apply a three-day presumption to hold that Oalmann received the Letter on November
4, 2019, thereby placing the filing of Oalmann’s original complaint one day outside of the 90-day
limitation period.11 Using the counting rules of Rule 6 of the Federal Rules of Civil Procedure,
the Hospital reasoned as follows: the Letter was issued on Thursday, October 31, 2019; the third
day thereafter was Sunday, November 3, 2019, so Oalmann is presumed to have received the Letter
on Monday, November 4, 2019; the ninetieth day after November 4, 2019, was Sunday, February
2, 2020, so the 90-day period would have expired at the end of the next day, Monday, February 3,

4

R. Doc. 22-3.
R. Doc. 22-4.
6
R. Docs. 2; 22-2 at 2.
7
R. Doc. 5.
8
R. Doc. 11.
9
R. Doc. 12.
10
R. Doc. 14.
11
R. Doc. 14-1 at 2-4. The Hospital further argued that the doctrine of equitable tolling was inapplicable,
and Oalmann’s April 23, 2020 amended complaint did not relate back to the original complaint so is untimely in any
event. Id. at 5-9.
5

2

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 3 of 8

2020; and Oalmann’s original complaint was filed the following day, February 4, 2020, one day
late.12
In opposition, Oalmann attached a declaration stating that his counsel received the Letter
on November 6, 2019.13 He asserted, then, that given this date of actual receipt, the 90-day period
did not expire until February 4, 2020, so the filing of his original complaint on that day was
timely.14 Oalmann then argued that the amended complaint was also timely because it relates back
to the filing of his original complaint under Rule 15(c) of the Federal Rules of Civil Procedure.15
In ruling on the Hospital’s motion to dismiss Oalmann’s first amended complaint, this
Court observed that pleading deficiencies hindered the Court in resolving the issue of the
timeliness of the original complaint.16 Specifically, the Court noted that Oalmann failed to plead
facts regarding when the EEOC mailed the Letter or when Oalmann received it. Thus, in the
interest of justice, the Court allowed Oalmann one last opportunity to amend his complaint to cure
the noted deficiencies, and the Hospital the opportunity to respond by supplying facts pertinent to
the timeliness issue if they were left unaddressed by Oalmann in the second amended complaint.17
Thereafter, Oalmann filed his second amended complaint in which he alleged that: the
EEOC issued the right-to-sue letter on October 31, 2019; his attorney received it on November 6,
2019; and he did “not recall if or when he received a copy of the Right-to-Sue Notice but was
informed by his attorney that she received [it] on November 6, 2019.”18 The Hospital filed another
motion to dismiss arguing that Oalmann’s second amended complaint did not cure the pleading

12

Id. at 4.
R. Doc. 15-1.
14
R. Doc. 15 at 5.
15
Id. at 5-8.
16
R. Doc. 19 at 4-5.
17
Id. at 5. The Court further held that Oalmann waived any claim to equitable tolling by failing to respond
to that portion of the Hospital’s motion, id. at 2 n.13, and that the Court would address the relation-back argument if
it found that the original complaint was timely filed. Id. at 5.
18
R. Doc. 20 at 7.
13

3

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 4 of 8

deficiencies pointed out by the Court because it still did not allege when Oalmann received the
Letter.19 Accordingly, the Hospital urged the Court to apply a three-day presumption of receipt,
which would render the filing of the original complaint untimely.20 In opposition, Oalmann
advocated for the application of a more lenient seven-day presumption of receipt, inferring that he
must have received the Letter after his attorney because it was mailed from New Orleans, and he
lived in Picayune, Mississippi, whereas his attorney’s office was in Baton Rouge.21
The Court noted that there was no concrete allegation of when Oalmann actually received
the right-to-sue letter, and after carefully considering the relevant cases, it applied the three-day
presumption, rather than the seven-day presumption, to find that Oalmann’s original complaint
was filed too late.22 Thus, the Court granted the Hospital’s motion and dismissed the case.23 A
judgment in the Hospital’s favor was issued on August 27, 2020.
II.

PENDING MOTION
On September 25, 2020, Oalmann filed the instant motion for reconsideration or relief from

judgment, arguing that he has discovered new evidence that warrants relief.24 Oalmann argues
that after he filed his EEOC charge, he moved to California, and although he had his mail
forwarded, he did not receive the copy of the Letter mailed to him.25 He claims he “did due
diligence” by going through previously unpacked boxes of mail, but was unable to locate the Letter
prior to responding to the Hospital’s second motion to dismiss.26 Oalmann argues that, after

19

R. Doc. 22-2 at 3-8.
Id. The Hospital also reiterated its relation back and equitable tolling arguments, but the Court did not
need to address them because it found that the complaint was untimely filed.
21
R. Doc. 23 at 5-6.
22
R. Doc. 24.
23
Id.
24
R. Doc. 26.
25
R. Doc. 26-2 at 2.
26
Id.
20

4

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 5 of 8

judgment was entered, he learned his daughter had another box of mail for him.27 This box
contained the Letter to him postmarked November 6, 2019, which, he says, makes his February 4,
2020 filing of the complaint timely.28
In opposition, the Hospital argues that the Letter does not constitute newly discovered
evidence because Oalmann was not diligent in locating it.29 The Hospital argues that the date of
Oalmann’s receipt of the Letter has been at issue for at least four months, and that because it was
in Oalmann’s actual or constructive possession that whole time, a reasonable exercise of diligence
to search for such a crucial piece of evidence should have uncovered it for timely submission in
opposing the Hospital’s motions to dismiss.30 The Hospital further argues that Oalmann has not
offered any valid explanation of why he did not thoroughly search all available documents before
the Court entered its judgment, and thus, the Letter cannot constitute newly discovered evidence.31
III.

LAW & ANALYSIS
A. Rule 59 & Rule 60(b)(2) Standard
A Rule 59(e) motion for reconsideration calls into question the correctness of a judgment.

In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). “Rule 59(e) is properly invoked
to correct manifest errors of law or fact or to present newly discovered evidence.” Id. “A Rule
59(e) motion should not be used to relitigate prior matters that should have been urged earlier or
that simply have been resolved to the movant’s dissatisfaction.” In re Self, 172 F. Supp. 2d 813,
816 (W.D. La. 2001). The grant of such a motion is an “extraordinary remedy that should be used

27

Id.
Id. From its examination, the Court cannot tell whether the label on the envelope Oalmann attaches to his
motion reflects his mailing address. Yet, because the Hospital does not question it, the Court will assume that it does
for the purposes of this motion.
29
R. Doc. 27 at 1-8. The Hospital argues that the motion must be analyzed under Rule 60(b) of the Federal
Rules of Civil Procedure since it was filed one day too late to be considered under Rule 59. Because the Court has
weighed the motion under both rules, and the result is the same either way, it need not resolve this question.
30
Id.
31
Id.
28

5

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 6 of 8

sparingly.” Indep. Coca-Cola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola Bottling
Co. United, Inc., 114 F. App’x 137, 143 (5th Cir. 2004) (citation omitted). A district court has
considerable discretion to grant or deny a Rule 59(e) motion for reconsideration. Edward H.
Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1990). Such a motion must be filed “no later
than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e).
In the Fifth Circuit, a Rule 59(e) movant must show that reconsideration is necessary for
at least one of the following reasons: (1) to correct manifest errors of law or fact upon which the
judgment is based; (2) to consider newly discovered or previously unavailable evidence; (3) to
prevent manifest injustice; or (4) to address an intervening change in the controlling law. Markel
Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 32 (5th Cir. 2012); Barber v. Spinal Elements, 2019
WL 5810304, at *2 (E.D. La. Nov. 7, 2019). But the motion “cannot be used to raise arguments
which could, and should, have been made before the judgment issued.” In re Life Partners
Holdings, Inc., 926 F.3d 105, 128 (5th Cir. 2019) (quoting Schiller v. Physicians Res. Grp. Inc.,
342 F.3d 563, 567 (5th Cir. 2003)). The Fifth Circuit has held that:
a 59(e) motion to reconsider should not be granted unless: (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.
Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir. 2003) (internal citation
omitted).
Similarly, Rule 60(b)(2) provides that “[o]n motion and just terms, the court may relieve a
party ... from a final judgment” when there is “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed.
R. Civ. P. 60(b)(2). “To obtain Rule 60(b)(2) relief, a movant must demonstrate: (1) that it
exercised due diligence in obtaining the information; and (2) that the evidence is material and
6

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 7 of 8

controlling and clearly would have produced a different result if present before the original
judgment.” Nat’l City Golf Fin. v. Scott, 899 F.3d 412, 418 (5th Cir. 2018) (quotation and citations
omitted). “The movant must ‘strictly’ satisfy these requirements.” Id. (citation omitted).
“Rule 59 and Rule 60(b)(2) share the same standard for granting relief on the basis of newly
discovered evidence.” Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995)
(citing 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
AND PROCEDURE

§ 2808, at 86 (2d ed. 1995)).

B. Oalmann’s “Newly Discovered” Evidence
The postmarked envelope and Letter purportedly constituting the mailing directed to
Oalmann does not constitute newly discovery evidence under the applicable standard because he
has not proved that it could not have been discovered earlier with proper diligence. The date of
Oalmann’s receipt of the Letter has been at issue in this litigation for months (since the filing of
the Hospital’s first motion to dismiss on May 29, 2020), and the Letter and envelope have been in
his actual or constructive possession the entire time. The Court gave Oalmann two opportunities
to file an amended complaint alleging when he received the Letter. Although he moved to
California, his daughter supposedly possessed a box of mail that contained the Letter. Oalmann
has not explained why he did not ask his daughter for the mail earlier, when he was searching for
the Letter in the boxes of mail he had with him in California. Given the amount of time the issue
regarding the timing of Oalmann’s receipt of the Letter was pending, and given the multiple
opportunities the Court afforded Oalmann to marshal facts supporting his position and amend his
complaint, Oalmann, with proper diligence, could have located the mailing before the Court
resolved the Hospital’s second motion to dismiss and entered judgment in the its favor. Because
Oalmann has not explained why he could not find the Letter and envelope sooner than when it was

7

Case 2:20-cv-00380-BWA-JVM Document 28 Filed 10/22/20 Page 8 of 8

submitted with this motion for reconsideration nearly a month after the Court entered judgment,
he cannot strictly satisfy the requirement that the evidence could not have been discovered earlier
with proper diligence. See Nat’l City Golf, 899 F.3d at 418 (evidence not “new” when party had
access to it the entire time); Gov’t Fin. Servs. One Ltd. P’ship v. Peyton Place, Inc., 62 F.3d 767,
772 (5th Cir. 1995) (no relief under Rule 60(b)(2) where party did not prove that it could not have
obtained the evidence prior to the entry of judgment if it had exercised due diligence); Thermacor
Process, L.P. v. BASF Corp., 567 F.3d 736, 744 (5th Cir. 2009) (evidence not “new” when party
did not offer proof of why it could not have been obtained sooner). As a result, Oalmann’s motion
for reconsideration or relief from judgment must be denied.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Oalmann’s motion for reconsideration or for relief from judgment

under Rule 60 (R. Doc. 26) is DENIED.
New Orleans, Louisiana, this 22nd day of October, 2020.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

8