Firefighters' Retirement System et al v. Royal Bank of Scotland PLC

Filing 63

RULING granting 51 Motion for Rehearing, or Alternatively, Motion to Alter or Amend Judgment. Parties shall Brief the issue related to jurisdiction as ordered in Record Document 57. Signed by Judge Shelly D. Dick on 12/12/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FIREFIGHTERS’ RETIRMENT SYSTEM,
MUNICIPAL EMPLOYEES’ RETIRMENT SYSTEM,
AND FIREFIGHTERS’ PENSION & RELIEF FUND

CIVIL ACTION
15-482-SDD-EWD

VERSUS

ROYAL BANK OF SCOTLAND PLC
RULING
This matter is before the Court on the Motion for Rehearing, or Alternatively,
Motion to Alter or Amend Judgment1 filed by Plaintiffs, Firefighters’ Retirement System,
Municipal Employees’ Retirement System, and Firefighters’ Pension & Relief Fund
(“Plaintiffs”). Defendant, Royal Bank of Scotland PLC (“RBS”), filed an Opposition2 to this
motion. Plaintiffs seek reconsideration of this Court’s Order3 which dismissed Plaintiffs’
claims against RBS without prejudice.
Plaintiffs argue that the Court’s Order4 should be “vacated or, alternatively, altered
or amended, and the Motion to Dismiss5 filed by RBS should be reheard based upon the
recent June 24, 2016 Order in the related case entitled Firefighters’ Retirement Systems.,
et al. v. Citco Group Limited, et al., Case No. 3:13-cv-373-SDD-EWD (“Citco”).”6 Plaintiffs

1

Rec. Doc. 51.
Rec. Doc. 53.
3
Rec. Doc. 50.
4
Id.
5
Rec. Doc. 14.
6
Rec. Doc. 51 (internal citations omitted).
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2

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contend this is proper because the Court in Citco “vacated its Order granting a Motion to
Dismiss for lack of personal jurisdiction” in favor of Citco Defendants, and ordered both
Plaintiffs and Citco Defendants to submit briefs “addressing the applicable legal standard
for the Court’s exercise of in personam jurisdiction considering nationwide service of
process authority pursuant to Bankruptcy Rule 7004(d) on or before July 8, 2016.”7
Because removal was the same in both Citco8 and the present case,9 removal related to
bankruptcy jurisdiction, the Court examines the jurisdictional basis under Bankruptcy rule
7004(d).
I.

Motion for Reconsideration Under Rule 59
As the Fifth Circuited stated in Edward H. Bolin Company, Inc. v. Banning

Company Inc., “Rule 59(e) has been interpreted as covering motions to vacate
judgments, not just to modify or amend.”10

Accordingly, Plaintiffs’ motion will be

considered under the standards governing Rule 59(e) motions.
A motion under Rule 59 “[i]s not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of
judgment.”11 Rather, Rule 59(e) serves the purpose of correcting manifest errors of law

7

Id. (internal citations and quotations omitted).
Firefighters’ Ret. Sys., et. al. v. Citco Group Limited, et al., No. 13-373 (M.D. La. filed June 13, 2013),
Rec. Doc. 290.
9
Rec. Doc. 1.
10
Edward H. Bolin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).
11
Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citing Simon v. United States, 891 F.2d
1154, 1159 (5th Cir.1990)).
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8

or fact, or presenting newly discovered evidence.12 “‘Manifest error’ is one that 'is plain
and indisputable, and that amounts to a complete disregard of the controlling law.'”13
The Fifth Circuit has held that altering, amending, or reconsidering a judgment
under Rule 59(e) “[i]s an extraordinary remedy that should be used sparingly.”14 “A Rule
59(e) motion should not be used to re-litigate prior matters that ... have been resolved to
the movant's dissatisfaction.”15 While the district courts do have “considerable discretion
in deciding whether to grant or deny a motion to alter a judgment,”16 denial of Rule 59(e)
motions to alter or amend is favored.17
Federal Rule of Civil Procedure 59(e) clearly states that “a motion to alter or amend
a judgment must be filed no later than 28 days after the entry of the judgment.”18
Judgment in the present case was entered on March 31, 2016.19 Plaintiffs filed the
present Motion on June 24, 2016 – well beyond the 28 day deadline required under Rule
59(e).20 The Fifth Circuit has strictly interpreted the 28 day deadline of Rule 59(e); in
McLendon v. Big Lots Stores, Inc., the Fifth Circuit held that a district court did not abuse

12

St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997); Sawhney v. TD
Ameritrade, Inc., No. 09–7651, 2010 WL 5057413, at *1(E.D. La. Dec. 2, 2010).
13
Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)(quoting Venegas–Hernandez v. Sonolux
Records, 370 F.3d 183, 195 (1st Cir. 2004)).
14
Templet, 367 F.3d at 479 (citing Clancy v. Empl'rs Health Ins. Co., 101 F.Supp.2d 463, 465
(E.D.La.2000)).
15
Voisin v. Tetra Techs., Inc., No. 08–1302, 2010 WL 3943522, at *2 (E.D.La. Oct.6, 2010).
16
Hale v. Townley, 45 F.3d 914, 921 (5th Cir.1995).
17
See S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir.1993).
18
Fed. R. Civ. P. 59(e).
19
Rec. Doc. 46.
20
Rec. Doc. 51.
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its discretion when the court denied a Rule 59 motion filed one day after the Rule 59(e)
28 day deadline.21
Plaintiffs argue their Rule 59(e) motion was timely because it was filed within 28
days of the Court’s Amended Order.22 RBS argues that the 28 day period should begin
on the date that the Court entered the original Order, March 31, 2016, not the date of the
Amended Order, June 24, 2016.23

In Transit Casualty Company v. Security Trust

Company, the Fifth Circuit found that a district court’s modification of an order of dismissal
from a dismissal with prejudice, to a dismissal without prejudice, was “not such a
substantial substantive change as to …extend [the] time for filing such a motion.”24 While
Transit and the present case are distinguishable as Transit dealt with a 60(b) motion and
the question of whether an appeal of a 60(b) order tolls the time for making a 60(b) motion,
the Court finds that the same rationale applied by the court in Transit applies to the
present case. Accordingly, the Court finds that the 28 day period to file a motion under
Rule 59 began on March 31, 2016, making Plaintiffs’ Motion for Rehearing untimely and,
thus, is time barred.
II.

Converting Plaintiffs’ Rule 59 Motion to a Rule 60 Motion
Although Plaintiffs did not make a Rule 60 argument in their Motion for

Rehearing,25 the Court may nevertheless convert the Rule 59 motion to a Rule 60 Motion:
“a court may treat an untimely 59(e) motion to alter or amend the judgment as if it were a

21

749 F.3d 373, 374 (5th Cir. 2014).
Rec. Doc. 60-1. See Rec. Doc. 50.
23
See Rec. Docs. 46, 51.
24
441 F.2d 788, 791 (5th Cir. 1971).
25
Rec. Doc. 51.
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22

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Rule 60(b) motion if the grounds asserted in support of the Rule 59(e) motion would also
support Rule 60(b) relief.”26 The Court has vacated its previous Ruling in Citco in light of
the Fifth Circuit’s finding that, “at the time of removal, jurisdiction was proper under 28
U.S.C. 1334(b) because the suit involved matters ‘related to’ a Chapter 11 bankruptcy
proceeding.”27 Given the present suit is related to Citco, and the grounds for removal
asserted by RBS invoke the Court’s “related to” jurisdiction,28 justice requires the Court
to convert Plaintiffs’ Rule 59 motion to a Rule 60 motion.
III.

Motion for Reconsideration Under Rule 60(b)
Federal Rule of Civil Procedure 60(b)(5) states:
On motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding for the following reasons: 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.29

Federal Rule of Civil Procedure 60(c) provides: “A motion under Rule 60(b) must be made
within a reasonable time – and for reasons (1), (2), and (3) no more than a year after the
entry of the judgment or order or the date of the proceeding.”30 As the Court has
determined it appropriate to convert Plaintiffs’ 59 motion to a Rule 60(b)(5) motion, as
long as the Plaintiffs filed their motion within a reasonable time, and the grounds asserted
also support a Rule 60 motion, the Court deems the motion timely. The record in Citco

26

Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998).
Firefighters’ Ret. Sys., et. al. v. Citco Group Limited, et al., No. 13-373 (M.D. La. filed June 13, 2013),
Rec. Doc. 290.
28
Rec. Doc. 1.
29
Fed. R. Civ. P. 60(b)(5) (emphasis added).
30
Fed. R. Civ. P. 60(c).
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27

and the present case illustrates the following: The original Judgment dismissing RBS was
issued on March 31, 2016; the Court requested that the Parties in Citco brief in personam
jurisdiction based upon nationwide service of process on June 24, 2016; on June 24,
2016, Plaintiffs filed the present Motion for Rehearing as to RBS.31 Plaintiffs filed their
Motion for Rehearing on the same day that the Court requested briefing in Citco on the
issue of in personam jurisdiction – the earliest opportunity for them to properly file the
present motion. As the Court has converted the motion to a Rule 60 motion, the filing
was timely.
The Supreme Court in Frew ex. rel Frew v. Hawkins held that Rule 60(b)(5) is
proper if “it is no longer equitable that the judgment should have prospective
application…encompass[ing] the traditional power of a court of equity to modify a decree
in light of a changed circumstance.”32 Because the Fifth Circuit clarified a fundamental
element of in personam jurisdiction in a related case, and based upon the Supreme
Court’s holding in Frew, the Court finds that it would be inequitable for the Court to
continue to enforce the Dismissal33 in favor of RBS having failed to apply the appropriate
jurisdictional analysis. Accordingly, the Court grants Plaintiffs’ Motion for Rehearing34
under Federal Rule of Civil Procedure 60(b)(5).

31

Rec. Docs. 36 and 51; Firefighters’ Ret. Sys., et. al. v. Citco Group Limited, et al., No. 13-373 (M.D. La.
filed June 13, 2013), Rec. Doc. 290.
32
540 U.S. 431, 441; 124 S.Ct. 499, 905-06; 157 L.Ed.2d. 855 (2004).
33
Rec. Doc. 50.
34
Id.
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IV.

Conclusion
For the reasons set forth above, Plaintiffs’ Motion for Rehearing, or Alternatively,

Motion to Alter or Amend Judgment35 is GRANTED.
The Parties shall brief the issue of related to jurisdiction as ordered in Record
Document 57.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on December 12, 2016.

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

35

Rec. Doc. 51.
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