Ruello et al v. JP Morgan Chase Bank NA

Filing 81

ORDER AND REASONS denying 73 Motion for New Trial and/or for relief from a final judgment for the reasons set forth in document. Signed by Judge Sarah S. Vance on 5/10/2022. (mm)

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 1 of 20

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DENNIS LOUIS RUELLO, ET AL.
VERSUS

CIVIL ACTION
NO. 20-895

JPMORGAN CHASE BANK, N.A., ET
AL.

SECTION “R” (1)

ORDER AND REASONS
Before the Court is plaintiffs Dennis Ruello and Lori Ruello’s motion
for a new trial and/or for relief from a final judgment. 1 Defendant JP Morgan
Chase Bank, N.A. (“JP Morgan”) and third-party defendant SMS Assist, LLC
(“SMS”) oppose the motion. 2 For the following reasons, the Court denies the
motion.

I.

BACKGROUND
This case arises from a fall that occurred at a branch location of Chase

Bank in Metairie, Louisiana.3 Plaintiffs allege that, on May 21, 2018, while
walking on a sidewalk outside of defendant’s bank, Dennis Ruello tripped on

1
2
3

R. Doc. 73.
R. Docs. 74 & 75.
R. Doc. 1-2.

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 2 of 20

a sprinkler head and fell to the ground, sustaining injuries. 4 They allege that
the sprinkler head’s proximity to the sidewalk was a dangerous and
hazardous condition. 5 On May 21, 2019, plaintiffs filed suit in Louisiana
state court, alleging that defendant’s negligence caused Dennis Ruello’s
injuries.6 On March 13, 2020, defendant JP Morgan removed the case to
federal court, contending that the requirements of diversity jurisdiction
under 28 U.S.C. § 1332 were met.7
On October 6, 2021, JP Morgan moved for summary judgment on
plaintiffs’ claims against it, 8 contending that plaintiffs could not show that
the sprinkler head posed an unreasonable risk of harm, or that JP Morgan
knew or reasonably should have known about the allegedly dangerous
condition. 9 JP Morgan further asserted that plaintiffs could not show that
the sprinkler head caused Dennis Ruello’s fall.10 Plaintiffs did not file an
opposition to JP Morgan’s motion.

4
5
6
7
8
9
10

Id. ¶¶ IV-V.
Id. ¶ V.
Id. at 1.
R. Doc. 1.
R. Doc. 66.
R. Doc. 66-2 at 10.
Id. at 10-11.
2

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 3 of 20

On December 20, 2021, finding that plaintiffs could not meet their
burden on causation, the Court granted JP Morgan’s motion. 11 Specifically,
the Court examined plaintiff’s deposition testimony indicating that he fell to
the ground, looked back, and noticed a sprinkler head next to the sidewalk.
The Court found this evidence insufficient to show that the sprinkler head
caused his fall:
Ruello’s testimony indicates, in all, that when he sat up and
looked back, the sprinkler head adjacent to the sidewalk was the
only obstruction he noticed. He does not assert any other
positive facts supporting the theory that he tripped on the
sprinkler head.
Ruello’s sprinkler-head theory is purely
speculative, and “proximate cause may not be established by
speculation or conjecture.” 12
The Court therefore granted summary judgment for JP Morgan and
dismissed all claims against it. 13
On January 12, 2022, JP Morgan moved for entry of final judgment
based on the Court’s summary-judgment ruling.14 On January 18, 2022, the
Court ordered that any opposition to JP Morgan’s motion must be filed by
January 21, 2022. 15 This deadline passed, and no opposition was filed. On

11
12
13
14
15

R. Doc. 68.
Id. at 7 (quoting Carey v. Hercules Ocean Corp., 321 F. App’x 402, 404
(5th Cir. 2009)).
Id. at 10.
R. Doc. 69.
R. Doc. 70.
3

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 4 of 20

January 25, 2022, the Court granted the motion 16 and entered final
judgment, dismissing with prejudice plaintiffs’ claims against JP Morgan. 17
On February 22, 2022, plaintiffs filed a motion for a new trial and/or
relief from final judgment. 18 Plaintiffs represent that, because of malware
affecting counsel’s laptop and emails, counsel never received notice of JP
Morgan’s motion for summary judgment, the Court’s order granting
summary judgment, or JP Morgan’s motion for entry of final judgment. 19
They assert that counsel first became aware of the motions, order, and
ultimate dismissal of JP Morgan on January 25, 2022, when the Court
entered final judgment.20
Plaintiffs’ counsel submits two sworn affidavits explaining the
problem.21 In the first affidavit, counsel attests that, in December of 2021,
he “became aware that [his] laptop had been experiencing ‘glitches,’
particularly with respect to e-mails.”22

He supports this assertion by

attaching emails between him and another attorney on a different case, in

16
17
18
19
20
21
22

R. Doc. 71.
R. Doc. 72.
R. Doc. 73.
R. Doc. 73-2 at 1-2.
Id. at 1.
R. Doc. 73-3 (Affidavit of Dennis P. Couvillion) (Feb. 2, 2022); R. Doc.
73-6 (Supplemental Affidavit of Dennis P. Couvillion) (Mar. 18, 2022).
R. Doc. 73-3 ¶ 8.
4

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 5 of 20

which counsel tells the other attorney that he did not receive multiple emails
from her. 23 As to this case, counsel attests that he did not receive email
notifications from CM/ECF, the Court’s electronic filing system, for any of
JP Morgan’s filings or the Court’s orders leading up to the final judgment. 24
He states that, on January 25, 2022, he received electronic notice of the
Court’s entry of final judgment, at which point he went back to check for
receipt of earlier notices.25 He states that he “discovered the unopened
transmissions from the Court’s electronic CM/ECF system” for the
summary-judgment order and JP Morgan’s motion for entry of final
judgment, 26 but emphasizes that these notices “were not present in [his]
inbox on the dates they were marked or shortly thereafter.” 27 Counsel further
attests that notice of JP Morgan’s original motion for summary judgment,
filed on October 6, 2021, never appeared in his inbox. 28 In a supplemental
affidavit, counsel explains that, since the filing of his motion for a new trial,
he has discovered that these technical problems “were not just the result of a

23

24
25
26
27
28

See, e.g., R. Doc. 73-4 at 4 (Email from Dennis Couvillion to Rachel
(Dec. 21, 2021, 11:30 AM)) (“[M]y e-mail has been acting funny
recently so I’m not totally shocked I didn’t receive your[] [email]
yesterday. I wouldn’t be surprised if it shows up today.”).
R. Doc. 73-3 ¶ 7.
Id.
Id.
Id.
Id.
5

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 6 of 20

simple software virus being introduced into [his] laptop,” but instead was a
“full-scale cyber-attack on [his] laptop and iPhone.”29 Counsel states that he
has learned that he was the victim of identity theft.30
Finally, plaintiffs note that counsel’s law office had a COVID-19
outbreak in early December, and that counsel was ill with COVID-19 from
December through mid-January.31 Plaintiffs contend that this period of
illness accounts for counsel’s delay between discovering his email problem
in December, and first addressing the issue in this case in late January. 32 On
these grounds, plaintiffs seek relief from the Court’s Order and Judgment
under Rules 59 and 60 of the Federal Rules of Civil Procedure. 33
Defendant JP Morgan opposes plaintiffs’ motion,34 and crossdefendant SMS joins in and adopts JP Morgan’s opposition. 35 JP Morgan
contends that none of plaintiffs’ cited reasons, including counsel’s technical
problems and illness, are sufficient to warrant vacating the Court’s Order and
Judgment.36 The Court considers the parties’ arguments below.

29
30
31
32
33
34
35
36

R. Doc. 73-6 ¶ 1.
Id. ¶ 2.
R. Doc. 73-2 at 4-6.
Id. at 5.
R. Doc. 73-2 at 5.
R. Doc. 74.
R. Doc. 75.
R. Doc. 74 at 3-7.
6

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 7 of 20

II.

DISCUSSION
Plaintiffs cite both Federal Rules of Civil Procedure 59 and 60 in their

motion for a new trial. The Court evaluates movants’ request under each
Rule.
A.

Rule 60(b)

Plaintiffs first seek relief under Rule 60(b), which provides that a court
“may relieve a party or its legal representative from a final judgment, order,
or proceeding” for any of the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new
trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it
is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Here, plaintiffs do not specify which of these reasons they believe
entitle them to relief from the Court’s final judgment. But their arguments
sound in the first reason: mistake, inadvertence, surprise, or excusable
neglect.

The Court’s “determination of what sorts of neglect will be
7

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 8 of 20

considered excusable is ‘an equitable one, taking account of all relevant
circumstances surrounding the party’s omission.’” Trevino v. City of Fort
Worth, 944 F.3d 567, 571 (5th Cir. 2019) (quoting Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)).
The Court finds that counsel’s unawareness of multiple significant
motions and orders in this case does not warrant relief under Rule 60(b)(1).
The Fifth Circuit is clear that a party has a “duty of diligence to inquire about
the status of the case.” Id. (quoting Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 357 (5th Cir. 1993)). The court has explained that counsel’s
“[g]ross carelessness . . . [is an] insufficient bas[i]s for 60(b)(1) relief,” and
that, “[i]n fact, a court would abuse its discretion if it were to reopen a case
under Rule 60(b)(1) when the reason asserted as justifying relief is one
attributable solely to counsel’s carelessness.” Id. (quoting Edward H. Bohlin
Co., 6 F.3d at 357).
Here, plaintiffs’ counsel failed at multiple junctures to monitor or
inquire about the status of this case. JP Morgan filed its summary-judgment
motion on October 6, 2021. That plaintiffs’ counsel did not receive notice of
the motion on that day might, by itself, be excusable, as it owes to a technical
problem that was not counsel’s fault. That said, counsel assertedly did not
manage to discover these problems until some point in December, despite
8

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 9 of 20

that, by that time, the issues had been affecting his devices for at least two
months, i.e., since at least as early as October 6th. Indeed, the issues seem
to have begun well before October 6th. Plaintiffs’ counsel states in his
supplemental affidavit that he experienced intermittent “‘glitches’ in [his]
internet and telephone services” starting in late August and early September,
and continuing through October, when the summary-judgment motion was
filed. 37

And evidently, counsel’s technical problems during this period

included non-receipt of emails, as he never received notice of JP Morgan’s
summary-judgment motion, filed on October 6th. 38 The Court notes that this
nearly four-month period, during which counsel experienced problems with
his internet, phone, and email, is a long time not to notice that something is
amiss, and to surmise that these problems could jeopardize counsel’s ability
to stay apprised of important updates in his clients’ cases.
Moreover, once counsel admittedly knew that he had email problems
in December of 2021, he did nothing to monitor or inquire about this case.
As documented by email evidence submitted by plaintiffs, counsel knew
some time before December 21, 2021 that he was having problems receiving
emails, and nonetheless took no steps to check on the status of this case.

37
38

R. Doc. 73-6 ¶ 7.
R. Doc. 73-3 ¶ 4.
9

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 10 of 20

Specifically, on December 21, 2021, an attorney in a different case wrote to
plaintiffs’ counsel: “I just looked over your motion to amend and it states that
you have not received a reply from me on whether I objected to the filing of
this motion. Please see below my email that I sent you yesterday morning at
9:39am.”39 Counsel replied: “Rachel, I did not receive your e-mail. I don’t
doubt that you sent it but I’m not shocked because lately my e-mail has been
a bit sketchy.” 40 Counsel then sent Rachel a second email, minutes later,
saying, “Sorry . . . the e-mail I was drafting to you simply sent itself . . . As I
was saying, my e-mail has been acting funny recently so I’m not totally
shocked I didn’t receive yours yesterday. . . . Had I received your email[,] I
certainly would not have represented that you hadn’t responded.”41 Counsel
then emailed to follow up, stating, “I searched again for your e-mail from
yesterday and I never received it. I even checked the spam folder but it was
not there either. But again, as I said, I don’t doubt that you sent it.”42 Clearly,
counsel knew at this point that he was not receiving emails. The problem

39
40
41
42

R. Doc. 73-4 at 2 (Email from Rachel to Dennis Couvillion (Dec. 21,
2021, 10:53 AM)).
Id. at 3 (Email from Dennis Couvillion to Rachel (Dec. 21, 2021, 10:58
AM)) (emphasis added).
Id. at 4 (Email from Dennis Couvillion to Rachel (Dec. 21, 2021, 11:13
AM)) (emphasis added).
Id. at 6 (Email from Dennis Couvillion to Rachel (Dec. 21, 2021, 11:22
AM)).
10

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 11 of 20

then presented itself again, when counsel asked Rachel, “[By the way], what
was Mr. Williams’ settlement demand?” 43 Rachel responded, “Dennis—I
sent you an email yesterday regarding the settlement demand as well. I will
resend now.” 44 As to the settlement email, counsel replied, “Didn’t get that
either.” 45
This exchange indicates that plaintiffs’ counsel knew that, in at least
one of his cases, he had not received two important emails from counsel.
And the correspondence further suggests that he knew about this problem
for some period of time before the 21st of December, as he told the attorney
on that day that his email had been “sketchy” lately, 46 and “acting funny
recently.”47
Knowing that he was not receiving emails consistently, a reasonably
prudent attorney would have checked the status of his cases to determine
whether he had missed any important court filings by virtue of this problem.

43
44
45
46
47

Id. at 4 (Email from Dennis Couvillion to Rachel (Dec. 21, 2021, 11:13
AM)).
Id. at 5 (Email from Rachel to Dennis Couvillion (Dec. 21, 2021, 11:13
AM)).
Id. at 7 (Email from Dennis Couvillion to Rachel (Dec. 21, 2021, 11:28
AM)).
Id. at 3 (Email from Dennis Couvillion to Rachel (Dec. 21, 2021, 10:58
AM)).
Id. at 4 (Email from Dennis Couvillion to Rachel (Dec. 21, 2021, 11:13
AM)).
11

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 12 of 20

This is especially true here, as it is apparent that the only way that plaintiffs’
counsel monitors developments in this case is by email notification from the
Court’s electronic filing system. Counsel’s total failure to check for case
updates in light of this knowledge was an abrogation of his “duty of diligence
to inquire about the status of the case.” Id. The problems with counsel’s
email, which in fact had been going on since October 6th or earlier, and that
counsel admittedly knew about before his December 21st emails quoted
above, suggest that counsel should have discovered JP Morgan’s motion for
summary judgment before the Court ruled on it on December 20, 2021.
Moreover, not only did counsel take no corrective action upon this
revelation in December, but he also did nothing during the following five
weeks, through the near end of January, when he received notice of final
judgment. And while he represents that he was ill from mid-December until
mid-January, illness generally “does not qualify as excusable neglect.”
Alverson v. Harrison Cnty., 643 F. App’x 412, 416 (5th Cir. 2016). This
reason is especially unavailing here, as counsel has failed to explain whether
or how his illness prevented him from checking the case docket. He does not
state that he was hospitalized or otherwise rendered incapable of exercising
his “duty of diligence to inquire about the status of the case.” Id. Moreover,
even if his illness somehow prevented him from inquiring about the case
12

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 13 of 20

while he was sick, it does not account for his continued inaction after his
recovery from his illness in mid-January. The Court finds that counsel
should have discovered JP Morgan’s motion for summary judgment, the
Court’s Order and Reasons granting summary judgment, JP Morgan’s
motion for entry of final judgment, and the Court’s January 18, 2022 briefing
order, all before the Court entered final judgment on January 25, 2022.
Missing all of these important filings, spanning a three-and-a-half-month
period, reflects a serious lapse in diligence on counsel’s part. Indeed, when
counsel eventually learned on January 25th that the Court had entered final
judgment in favor of JP Morgan, it was only because of the fortuitous receipt
of an email notification from the Court’s electronic filing system—the very
type of notification that he had assertedly not received in the previous
months. Counsel does not state that this notice resulted from any diligence
or inquiry on his part; it instead seems that his email simply functioned
properly at the right time.
Finally, even after discovering on January 25th that the Court had
entered judgment dismissing plaintiffs’ claims against the only direct
defendant in this case, counsel inexplicably waited yet another month before
filing a motion to reopen the case.
unexplained.
13

He leaves this last delay entirely

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 14 of 20

In sum, while the technological problems plaguing counsel’s laptop
and phone are evidently not his own fault, his apparent failure to check the
docket for at least three and a half months, and his total inaction upon
discovery of his technological problems, are attributable only to him. These
circumstances do not amount to the type of “mistake, inadvertence, surprise,
or excusable neglect” that might justify relief under Rule 60(b)(1). Cf.
Trevino, 944 F.3d at 572 (denying Rule 60(b) relief when court email
communications were inadvertently sent to counsel’s spam folder);
Onwuchekwe v. Okeke, 404 F. App’x 911, 912 (5th Cir. 2010) (“[I]t was not
an abuse of discretion to conclude that sending court communications to the
spam folder is inexcusable neglect.”). Nor have plaintiffs shown that there is
any “other reason that justifies relief.” See Fed. R. Civ. P. 60(b)(6); Walker
v. Transfrontera CV de SA, 634 F. App’x 422, 431 (5th Cir. 2015) (denying
Rule 60(b)(6) relief because counsel’s arguments did “not excuse [his] duty
to stay apprised . . . of the status of his client’s case”).
Accordingly, the Court finds that plaintiffs are not entitled to relief
from the Court’s Order and Judgment under Rule 60(b).

14

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 15 of 20

B.

Rule 59

Plaintiffs also move for a new trial under Rule 59(a), which states that
a court may grant a new trial “after a nonjury trial, for any reason for which
a rehearing has heretofore been granted in a suit in equity in federal court.”
Fed. R. Civ. P. 59(a)(1)(B). But in this case, a trial never occurred, and the
Court instead resolved plaintiffs’ claims on summary judgment. The Court
thus construes plaintiffs’ Rule 59(a) motion as a motion to “alter or amend
the judgment” under Rule 59(e). See Patin v. Allied Signal, Inc., 77 F.3d 782,
785 n.1 (5th Cir. 1996) (holding that a motion for reconsideration styled as a
motion for a new trial following summary judgment was properly analyzed
as a Rule 59(e) motion to reconsider entry of summary judgment).
Rule 59(e) permits a party to file “a motion to alter or amend a
judgment . . . after the entry of the judgment.” Fed. R. Civ. P. 59(e). A district
court has “considerable discretion” under Rule 59(e). See Edward H. Bohlin
Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993).

That said,

“[r]econsideration of a judgment after its entry is an extraordinary remedy
that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473,
479 (5th Cir. 2004). “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.” Edward H. Bohlin Co., 6 F.3d at 355.
15

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 16 of 20

A motion to reconsider under Rule 59(e) “must clearly establish either
a manifest error of law or fact or must present newly discovered evidence.”
In re Life Partner Holdings, Inc., 926 F.3d 103, 128 (5th Cir. 2019) (quoting
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003)).
Courts have held that the moving party must show that the motion is
necessary based on at least one of the following criteria: (1) “correct[ing]
manifest errors of law or fact upon which the judgment is based;”
(2) “present[ing] newly discovered or previously unavailable evidence;”
(3) “prevent[ing]

manifest

injustice;”

and (4)

accommodating

“an

intervening change in the controlling law.” Fields v. Pool Offshore, Inc., No.
97-3170, 1998 WL 43217, at *2 (E.D. La. Mar. 19, 1998).
As to these four criteria, plaintiffs do not contend that reconsideration
of the judgment is warranted because of (i) manifest errors of law or fact,
(ii) newly discovered evidence, or (iii) a need to accommodate an intervening
change in the law. They instead state that the Order and Judgment should
be vacated “to prevent an injustice.”48 In this sense, plaintiffs invoke the
“manifest injustice” criterion under Rule 59(e).
“There is no general definition of manifest injustice; rather, courts
evaluate whether there has been a manifest injustice on a case-by-case

48

R. Doc. 73-2 at 5.
16

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 17 of 20

basis.” Bender Square Partners v. Factory Mut. Ins. Co., No. 10-4295, 2012
WL 1952265, at *4 (S.D. Tex. May 30, 2012). That said, caselaw makes clear
that the movant’s standard is high. A bankruptcy appellate panel of the U.S.
Court of Appeals for the Sixth Circuit summarized some key considerations
as to what constitutes “manifest injustice” under Rule 59:
A movant seeking Rule 59(e) relief must be able to show an error
in the trial court that is direct, obvious, and observable. The
movant must also be able to demonstrate that the underlying
judgment caused them some type of serious injustice which
could be avoided if the judgment were reconsidered. Essentially,
the movant must be able to show that altering or amending the
underlying judgment will result in a change in the outcome in
their favor.
In re Cusano, 431 B.R. 726, 734 (B.A.P. 6th Cir. 2010) (quoting In re
Henning, 420 B.R. 773, 785 (Bankr. W.D. Tenn. 2009)). While this Court is
not bound by this Sixth Circuit authority, these principles serve to illustrate
that plaintiffs must make a substantial showing to obtain relief based on
“manifest injustice” under Rule 59(e).
Applying this “amorphous concept” to these facts, In re Henning, 420
B.R. at 785, the Court finds that plaintiffs have failed to show that
reconsideration is warranted to prevent manifest injustice in this case.
Plaintiffs do not contend that the Court’s dismissal of their claims against JP
Morgan is unjust based on the facts or law applicable to this case. See
Templet, 367 F.3d at 479 (noting that courts considering Rule 59(e) motions
17

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 18 of 20

should consider “the need to render just decisions on the basis of all the
facts”). Indeed, in moving for reconsideration, plaintiffs do not even address
the substance of the Court’s summary-judgment order. Predictably, then,
they have not argued that the Court made a “direct, obvious, and observable”
error in granting summary judgment in favor of JP Morgan, or that “altering
or amending the underlying judgment will result in a change in the outcome
in their favor.” In re Cusano, 431 B.R. at 734. In sum, plaintiffs’ assertion of
“injustice” has nothing to do with the law or facts of this case.
Plaintiffs instead assert that it is a “grave injustice” that JP Morgan’s
motions were decided without oppositions from plaintiffs. 49

But as

explained above, plaintiffs’ failure to respond to the motions owes to
counsel’s failure to check the status of the case for many months, including a
period when he knew that he was experiencing technical problems involving
non-receipt of email notifications. Consistent with the substantial showing
required to demonstrate “manifest injustice,” courts have recognized that
“the negligence or erroneous strategy choices of a party’s attorney . . . which
contributed to the court’s dismissal of the party’s claims, do not amount to
manifest injustice.” Courtade v. Harrah’s Operating Co., No. 10-4036, 2011
WL 2446454, at *4 (E.D. La. June 15, 2011) (citing Robinson v. Wix

49

Id.
18

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 19 of 20

Filtration Corp. LLC, 599 F.3d 403, 409 (4th Cir. 2010)). In fact, the U.S.
Court of Appeals for the D.C. Circuit has affirmed the denial of a Rule 59(e)
motion citing “manifest injustice,” based on substantially similar arguments.
See Fox v. Am. Airlines, Inc., 389 F.3d 1291 (D.C. Cir. 2004). There, in the
district court, defendant American Airlines filed a motion to dismiss, and
plaintiffs never responded. After the court granted the motion, plaintiffs
moved for reconsideration under Rule 59(e), asserting that “their counsel
failed to receive electronic notice” of the motion to dismiss, and that the court
should vacate its judgment “to prevent ‘manifest injustice.’” Id. 1293. The
trial court rejected this argument, and the D.C. Circuit affirmed. Finding that
Rule 59(e) did not warrant vacatur of the judgment, the D.C. Circuit
explained: “We can hardly say that the district court abused its discretion in
declining to vacate its judgment of dismissal to prevent ‘manifest injustice’
flowing from the appellants’ failure to receive notice [of the motion to
dismiss] given that . . . the dismissal of their suit might have been avoided
through the exercise of due diligence.” Id. at 1296. Such is the case here, as
the dismissal of plaintiffs’ claims might have been avoided through the
exercise of diligence at any point in the three-and-a-half-month period
during which counsel failed to learn of multiple significant filings in his
clients’ case.
19

Case 2:20-cv-00895-SSV-JVM Document 81 Filed 05/10/22 Page 20 of 20

As the Fifth Circuit has explained, Rule 59(e) relief is an “extraordinary
remedy that should be used sparingly.” Templet, 367 F.3d at 479. With no
showing that this “extraordinary remedy” is warranted, id., and in the
interest of finality, Edward H. Bohlin Co., 6 F.3d at 355, the Court denies
plaintiffs’ request for relief under Rule 59(e).
Accordingly, the Court finds that neither Rule 60 nor Rule 59 entitles
plaintiffs to reconsideration of, or relief from, the Court’s December 20, 2021
Order or its January 25, 2022 Judgment. Plaintiffs’ motion is denied.

III. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs’ motion for a
new trial and/or for relief from a final judgment. 50

10th
New Orleans, Louisiana, this _____ day of May, 2022.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

50

R. Doc. 73.
20