Gonzales .v. T. Baker Smith, L.L.C. et al

Filing 41

RULING denying 37 Motion Requesting Entry of Judgment and 38 Motion for New Trial and/or Reconsideration. Signed by Judge Shelly D. Dick on 4/30/2014. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ASHLEY R. GONZALES AND
LONNIE MATTHEW GONZALES

CIVIL ACTION

VERSUS

NO. 13-644-SDD-RLB

T. BAKER SMITH, LLC f/d/b/a
T. BAKER SMITH, INC. f/d/b/a
T. BAKER SMITH & SON, INC.,
LUCIEN J. CUTRERA, KENNETH W.
SMITH, JASON KENNEDY AND
ANNETTE HUBER

RULING
This matter is before the Court on the Motion for New Trial and/or Motion for
Reconsideration1 and the Motion Requesting Entry of Judgment2 filed by Plaintiffs, Ashley
R. Gonzales and Lonnie Matthew Gonzales (“Plaintiffs”). The Defendants, T. Baker Smith,
Kenneth W. Smith, Jason Kennedy, and Annette Huber (“Defendants”) have filed an
Opposition3 to Plaintiffs’ Motion for New Trial and/or Motion for Reconsideration. For the
reasons which follow, the Court finds that Plaintiffs’ motions should be denied.
I.

MOTION FOR NEW TRIAL/RECONSIDERATION
The motion was filed within 28 days of the relevant ruling; thus, it is evaluated

pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. “A Rule 59(e) motion calls

1

Rec. Doc. No. 38.

2

Rec. Doc. No. 37.

3

Rec. Doc. No. 40.

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into question the correctness of a judgment.”4 However, a Rule 59(e) motion is “not the
proper vehicle for rehashing evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment.”5 Rather, a motion for reconsideration is for
the purpose of correcting “manifest errors of law or fact or to present newly discovered
evidence.”6 The Court finds that neither of these grounds have been presented by the
Plaintiffs in this case. Simply disagreeing with the Court’s decision is not a grounds for
reconsideration.
The Plaintiffs have failed to allege intentional acts against the Defendants previously
dismissed. Plaintiffs identify the following allegations as intentional acts:
(a) by failing to take appropriate action to stop Cutrera’s behavior;
(b) by failing to give serious consideration to Gonzales’ pleas for help;
(c) by failing to remove Gonzales from the hostile work environment created
by Cutrera;
(d) by emboldening and tacitly consenting to Cutrera’s conduct directed to
and at Conzales; and
(e) by failing to terminate Cutrera for his conduct...7
Plaintiffs cite language from Katz v. Dole8 in support of their contention that such
language “demonstrates that intentional acts can be committed when co-employees are
4

Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)(citation and quotations omitted).

5

Id. at 479.

6

Id. (citations and quotations omitted).

7

Rec. Doc. No. 38-1, p. 2, quoting Rec. Doc. No. 1, ¶ 71.

8

709 F.2d 251 (4th Cir. 1983), abrogated on other grounds by Mikels v. City of Durham, NC, 183 F.3d 323,
329 (4th Cir. 1999).
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silent.” The holding of Katz is inapplicable to the issue before the Court. Katz did not hold
that the allegations against the plaintiff’s co-workers were intentional torts under Louisiana
law; rather, the court merely held that, “[w]here, as here, the employer’s supervisory
personnel manifested unmistakable acquiescence in or approval of the harassment, the
burden on the employer seeking to avoid liability is especially heavy.”9 Contrary to
Plaintiffs’ position, Katz does not support their argument. The law is clear that, “relief
granted under Title VII is against the employer, not against the individual employees whose
actions constituted a violation of Title VII.”10 In citing Katz, Plaintiffs seem to misunderstand
the Court’s ruling, wherein it found that Plaintiffs failed to alleged intentional torts against
the individual Defendants. The Court has not held that Plaintiff’s employer may not be held
liable under Title VII for the alleged acts/failures committed by these various employees if
Plaintiff bears her burden at trial. However, this language does not transform Plaintiffs’
allegations from negligence to intentional tort.
Plaintiffs clearly and unequivocally alleged intentional infliction of emotional distress
against Defendant Lucien Cutrera, stating that “he actively desired to harm Gonzales and
L. Gonzales both mentally, emotionally, and physically.”11 No such allegations are made
against the other individual Defendants; Plaintiffs refer to these Defendants’ “actions and
failure to act” claiming that their “tacit consent may also include acts of negligence and/or
negligent supervision ... Either way, those actions also violated Louisiana Civil Code article

9

Id. at 256.

10

Galbreth v. Bellsouth Telecommunications, Inc., 896 F.Supp. 631, 633 (E.D. La. 1995)(quoting Grant v.
Lone Star Co., 21 F.3d 649, 652 (5th Cir. 1994)(quoting Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.
1991))(internal quotation marks omitted).
11

Rec. Doc. No. 1, ¶ 69.

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2315.”12 These allegations do not state that these particular Defendants actively desired
to bring about the results of their acts, or believed that they were substantially certain to
follow.13

Thus, Plaintiffs’ Motion for Reconsideration on dismissal of the individual

Defendants is DENIED.
Furthermore, Plaintiffs’ attempt to distinguish Tumbs v. Wemco, Inc.14 falls short.
For the same reasons set forth in Tumbs and the other cases relied upon by the Court in
its previous Ruling, the Plaintiffs’ Motion for Reconsideration as to the exclusivity of the
Louisiana Worker’s Compensation law is DENIED.
II.

MOTION FOR ENTRY OF JUDGMENT
Plaintiffs have requested a separate judgment under Rules 58(a) and 58(d) of the

Federal Rules of Civil Procedure. For the reasons that follow, the Court believes that it
would be inappropriate to do so at this juncture. The provisions of Rule 58 are modified by
those of Rule 54(b) which provide that judgment may be entered as to fewer than all parties
to an action only if the Court “... expressly determines that there is no just reason for delay.”
Rule 54(b) requests should not be granted routinely and are appropriate only after
considering the judicial administrative interests as well as the other equities involved.15
In PYCA Indus., Inc. v. Harrison County Waste Water Mgmt. Dist., the Fifth Circuit
stated:
Rule 54(b) of the Federal Rules of Civil Procedure provides that “the court

12

Rec. Doc. No. 1, ¶ 71.

13

See Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981).

14

97-1437 (La. App. 4 Cir. 4/22/98), 714 So.2d 761, writ denied, 98-1750 (La. 10/9/98), 726 So.2d 34.

15

Brown v. Mississippi Valley State University, 311 F.3d 328, 332 (5th Cir. 2002).

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may direct entry of a final judgment as to one or more but fewer than all of
the claims … only upon an express determination that there is no just reason
for delay and upon express direction for the entry of judgment.” … One of the
primary policies behind requiring a justification for Rule 54(b) certification is
to avoid piecemeal appeals. A district court should grant certification only
when there exists some danger of hardship or injustice through delay which
would be alleviated by immediate appeal; it should not be entered
routinely as a courtesy to counsel.16
The Court’s Ruling of March 7, 2014, dismissed all of Plaintiffs’ claims asserted in
this matter against Defendants Kenneth W. Smith, Jason Kennedy, and Annette Huber,
and is, therefore, an ultimate disposition of all of Plaintiffs’ claims as to these individual
Defendants. Accordingly, the Court concludes that it is a final judgment as to the claims
asserted against Kenneth W. Smith, Jason Kennedy, and Annette Huber. The Court’s
analysis, however, does not end here; the Court must now determine whether there is any
just reason for delay.17
The determination of whether “there is no just reason for delay” lies “within the
sound discretion of the district court.”18 However, “[n]ot all final judgments on individual
claims should be immediately appealable, even if they are in some sense separable from
the remaining unresolved claims.”19 In making its determination, the district court has a
duty to weigh “‘the inconvenience and costs of piecemeal review on the one hand and the

16

81 F. 3d 1412, 1421 (5th Cir. 1996)(citing Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d
442, 445 (2d Cir. 1985))(emphasis added).
17

First American Title Co. v. Titan Title, LLC, 2012 WL 1065486, *1 (M.D.La. 3/28/02)(“Once having
found finality, the district court must go on to determine whether there is any just reason for delay.”)

18

Ichinose v. Travelers Flood Ins., 2007 WL 1799673, *2 (E.D.La. 6/21/07).

19

Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1
(1980)(citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297
(1956)).

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danger of denying justice by delay on the other.’”20 One main factor that the court should
consider is whether the appellate court “‘would have to decide the same issues more than
once even if there were subsequent appeals.’”21 “It is uneconomical for an appellate court
to review facts on appeal following a Rule 54(b) certification that it is likely to be required
to consider again when another appeal is brought after the district court renders its decision
on the remaining claims or as to the remaining parties.”22
The Fifth Circuit has also explained that “[w]hen some of the same facts form the
basis for several claims, the existence of separate claims for purposes of Rule 54(b)
depends on an analysis of their distinctness.”23
After weighing the appropriate factors, the Court finds that certification is
inappropriate in this case. The Court concludes that the claims asserted against Kenneth
W. Smith, Jason Kennedy, and Annette Huber, are not so distinct from the remaining
claims to warrant certification. The Court further concludes that no injustice or hardship
exists that would be alleviated by an immediate appeal and that no injustice would result
from a delay in the entry of final judgment. Consequently, the possibility that an entry of
judgment will produce piecemeal review in this case outweighs the danger of denying

20

Ichinose v. Travelers Flood Ins., 2007 WL 1799673, *2 (E.D.La. 6/21/07) (citing Road
Sprinkler Fitters Local Union v. Continental Sprinkler Co., 967 F.2d 145, 148 (5th Cir. 1992)(quoting
Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324 (1950)).
21

Id. (citing H & W Indus., Inc. v. Formosa Plastics Corp., USA, 860 F.2d 172, 175 (5th Cir.
1988)(quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1465
(1980))).
22

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§2659 (3rd ed. 1998).
23

Tubos de Acero de Mexico, S.A. v. American Intern. Inv. Corp., Inc., 292 F.3d 471, 485 (5th
Cir. 2002).

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justice by delay.
Accordingly, the Motion Requesting Entry of Judgment24, is hereby DENIED.
III.

CONCLUSION
For the reasons set forth above, the Motion Requesting Entry of Judgment25 and the

Motion for New Trial and/or Reconsideration26 filed by Plaintiffs are DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on April 30, 2014.

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

24

Rec. Doc. No. 37.

25

Rec. Doc. No. 37.

26

Rec. Doc. No. 38.

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