Henderson v. Turner et al
Filing
200
ORDER AND REASONS granting in part and denying in part 178 Motion for Reconsideration. FURTHER ORDERED that by 4:30 p.m. on February 25, 2013, plaintiffs shall inform the Court in a memorandum filed into the record whether they wish to proceed on the wrongful death claim. La. C.C. 2315.2. Signed by Judge Helen Ginger Berrigan on 02/21/2013. (kac)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
LATESHA HENDERSON, ET AL
CIVIL ACTION
VERSUS
NO. 11-39
MAJOR JOE TURNER, ET AL
SECTION: "C" (4)
ORDER AND REASONS
Before the Court is defendants’ motion for reconsideration of the Court’s ruling. Rec.
Doc. 178. Plaintiffs oppose this motion. Rec. Doc. 199. Having considered the record, the
memoranda of counsel and the law, the Court PARTIALLY GRANTS and PARTIALLY
DENIES the motion. Rec. Doc. 178.
Although the Federal Rules of Civil Procedure do not formally recognize a “Motion for
Reconsideration,” the courts have developed an approach to evaluate such a motion. The Court
first considers which of two federal rules governs the motion. Lavespere v. Niagara Machine &
Tool Works, Inc., 910 F.2d 167 (5th Cir. 1990). The Fifth Circuit treats a motion for
reconsideration as “either a motion ‘to alter or amend’ under Rule 59(e) or a motion for ‘relief
from judgment’ under Rule 60(b).” Id. at 173. In particular, “if the motion is served within ten
(10) days of rendition of judgment, the motion falls under Rule 59(e); if it is served after that
time, it falls under Rule 60(b).” Id. Defendants’ Motion was filed less than ten (10) days after
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the Court’s February 6, 2013 Order for which they seek reconsideration. Rec. Doc. 178.
Accordingly, the Motion is treated as a Rule 59(e) motion to alter or amend.
Alteration or amendment of a previous ruling under Rule 59(e) “‘calls into question the
correctness of the judgment.’” Tremplet v. Hydrochem Inc., 367 F.3d 473, 478 (5th Cir.
2004)(quoting In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). This motion
serves 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) (internal quotations omitted). It may also be used to prevent manifest injustice. Flynn v.
Terrebonne Parish School Bd., 348 F. Supp. 2d 769, 771 (E.D. La. 2004). As such, it must be
used sparingly. Clancy v. Employers Health Ins. Co., 101 F. Supp. 2d 463, 465 (E.D. La. 2000).
Here, defendant is asking the Court to reconsider its February 6, 2013 Order, which
stated that an opinion regarding whether or not Dawkins was compliant or not with his
recommended treatments could not be presented because: “The Court has previously ruled that
recovery for civil rights claims under 42 U.S.C. § 1983 are not subject to diminution resulting
from comparative fault.” The Court assumed, based on the pretrial order, that Plaintiffs now
sought only to bring a claim based on 42 U.S.C. § 1983.1 In the Fifth Circuit, a pretrial order
signed by both parties supersedes all pleadings and governs the issues and evidence to be
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In the pretrial order, Section “A. Jurisdiction,” the parties wrote only that the jurisdiction
of this Court is invoked under “Federal Question,” where the Plaintiff specifically seeks relief
pursuant to 42 U.S.C. § 1983, et seq., for injuries, damages and punitive damages.
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presented at trial. Provident Financial Inc. v. Strategic Energy L.L.C., 404 Fed. Appx. 835, 838
(5th Cir. 2010) (citing Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 388, 345 n. 5 (5th Cir.
2002). Additionally, “‘[e]ach party has an affirmative duty to allege at the pretrial conference all
factual and legal bases upon which the party wishes to litigate the case.’” Provident, 404 Fed.
Appx. at 838 (quoting Trinity Carton Co. v. Falstaff Brewing Corp., 767 F.2d 184, 192 n. 13 (5th
Cir. 1985)). In the pretrial order, the parties made no reference to a claim for wrongful death
under Louisiana Civil Code Article 2315.2, which would allow for comparative fault under
Louisiana Civil Code Article 2323. Rec. Doc. 172. However, as defendants explained in their
motion for reconsideration, plaintiffs set forth a state law claim for wrongful death under
Louisiana Civil Code Article 2315.2 in their amended complaint. Rec. Doc. 7, p. 10.2
It is at the trial court’s discretion whether failure to allege all legal bases in the pretrial
order may implicate waiver of the issue. Provident, 404 Fed. Appx. at 838 (quoting Trinity
Carton Co. at 192). In this case, the Court will allow the plaintiffs until 4:30 p.m. on Monday,
February, 25, 2013, to inform the Court in a memorandum filed into the record if they intend to
proceed on the wrongful death claim under Louisiana Civil Code Article 2315.2. Failure to
inform the Court by this time will waive plaintiffs right to bring the wrongful death claim in
conformity with what the parties alleged in the pretrial order. Rec. Doc. 172. If plaintiffs do not
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While plaintiffs made this claim in their amended complaint, they also submitted the
original motion that asked the court to find that comparative fault was inapplicable in this case
because it was being brought under 42 U.S.C. § 1983. Rec. Doc. 88. The Court granted that
motion. Rec. Doc. 111.
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wish to proceed under the state law claim for wrongful death, the Court’s motion for
reconsideration is DENIED and comparative fault will be inapplicable to the case as a 42 U.S.C.
§ 1983 claim. If plaintiffs wish to add the claim for wrongful death to the pretrial order, the
Court will reconsider its February 6, 2013 order on comparative fault. Rec. Doc. 174.
Accordingly,
IT IS ORDERED that defendants’ motion is GRANTED in PART and DENIED in
PART. Rec. Doc. 178.
IT IS FURTHER ORDERED that by 4:30 p.m. on February 25, 2013, plaintiffs shall
inform the Court in a memorandum filed into the record whether they wish to proceed on the
wrongful death claim. La. C.C. 2315.2.
New Orleans, Louisiana this 21st day of February, 2013.
______________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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