Mendoza et al v. Doyle International Louisiana, LLC et al

Filing 145

RULING AND ORDER denying 141 Motion to Reconsider Rulings on Motions for Summary Judgment. Signed by Judge Brian A. Jackson on 4/16/2020. (SWE)

Case 3:17-cv-00437-BAJ-SDJ

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DOUGLAS MENDOZA, ET AL.

CIVIL ACTION

VERSUS
DOYLE INTERNATIONAL
LOUISIANA, LLC, ET AL.

NO: 17-00437-BAJ-EWD

RULING AND ORDER
Before the Court is the Plaintiff Douglas Mendoza’s Motion to Reconsider
Rulings on Motions for Summary Judgment (Doc. 141). Plaintiff requests the
Court reconsider its Ruling and Order (Doc. 139), in which the Court granted the
Motions for Summary Judgment filed by Plaintiff-in-Intervention Hancock Whitney
Bank (“Hancock Whitney”) (Doc. 86) and the Federal Deposit Insurance Commission
(“FDIC”) (Doc. 69) and denied the Motion for Summary Judgment filed by Plaintiff
(Doc. 119), resulting in the dismissal of his remaining claims. Hancock Whitney
opposes this motion. For the reasons that follow, the Plaintiff’s Motion is DENIED.
I.

BACKGROUND
Upon the filing of the Motions for Summary Judgment, Plaintiff pursued three

claims remaining after the Court’s Ruling on Defendant’s Motion to Dismiss (Doc.
42): (1) intentional misrepresentation, (2) fraudulent inducement, and (3) annulment
of a contract. (Doc. 42). In the Ruling and Order on the Motions for Summary
Judgment (Doc. 139), the Court dismissed all three claims. The Court found no

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intentional misrepresentation because Plaintiff failed to prove that Fred Beebe,
Senior Vice President of First NBC Bank, owed him a duty to disclose. (Doc. 119 at p.
7). The Court also found no fraudulent inducement because, in addition to having
failed to show that Fred Beebe of FNBC engaged in a misrepresentation, Plaintiff
also failed to show that he was influenced by FNBC to enter the contract. (Id. at p.
8). Because Plaintiff could not prove fraud on the part of FNBC, the Court found no
basis on which to annul Plaintiff’s contract. (Id.). The Court granted Defendant
FDIC’s Motion and denied Plaintiff’s Motion.
The Court also granted Hancock Whitney’s Motion for Summary Judgment.
Hancock Whitney proved its prima facie case of enforceability of Plaintiff’s
promissory note by producing the note with Plaintiff’s signature. The burden then
shifted to Plaintiff to prove any affirmative defenses. The Court found that Plaintiff
did not prove any basis to decline the enforceability of the note. (Id. at p. 9).
Plaintiff has now filed the instant motion, pursuant to Federal Rule of Civil
Procedure 59(e), requesting the Court to reconsider its Ruling and Order. Plaintiff
asserts that there was a lack of consideration, or in the alternative, the consideration
failed, and that FNBC breached the contract. Hancock Whitney opposes this motion,
asserting that Plaintiff presents no new evidence and fails to allege a manifest error
of law or fact by the Court, instead asserting untimely affirmative defenses and an
unpleaded claim for breach of contract.

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II.

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DISCUSSION
A.

Lack of Consideration/ Failure of Consideration

Plaintiff argues entitlement to summary judgment because his contract lacked
consideration because FNBC never funded Plaintiff’s loan. (Doc. 141-1 at p. 3).
Plaintiff contends that FNBC had a plan to take the check issued to Plaintiff and use
it to pay other overdrawn accounts. (Id.). Plaintiff argues that although FNBC issued
a check for the loan amount to him and he endorsed the check and presented it to
FNBC, FNBC then deposited the check into the account of Doyle International and
was never seen again by Plaintiff. (Id. at p. 4). In the alternative, Plaintiff argues that
if consideration was given, it failed because FNBC disbursed funds to different
accounts without Plaintiff’s knowledge. Plaintiff cites no cases supporting its
contention that FNBC’s subsequent actions constitute a failure of consideration.
Hancock Whitney asserts that Plaintiff has failed to come forth with new,
previously unavailable evidence, as required by Fed. R. Civ. P. 59. Hancock Whitney
further contends that Plaintiff has rehashed the same arguments as asserted in its
Motion for Summary Judgment and oppositions to the other Motions for Summary
Judgment. Hancock Whitney argues that consideration was present and never failed.
The loan was funded because Plaintiff admitted to receiving a check for the loan
proceeds from FNBC. Hancock Whitney further argues that Plaintiff has waived his
right to assert lack of consideration and failure of consideration because these are
affirmative defenses that should have been asserted in his answer to Hancock
Whitney’s Complaint of Intervention (Doc. 13).

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1.

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Lack of Consideration and Failure of Consideration are
Untimely Asserted Affirmative Defenses.

Federal Rule of Civil Procedure 8(c)(1) provides “in responding to a pleading, a
party must affirmatively state any avoidance or affirmative defense.” The affirmative
defenses listed in Rule 8(c)(1) is an illustrative list on which “failure of consideration”
is specifically expressed. Although not expressed on Rule 8’s list, “lack of
consideration” is also recognized as an affirmative defense. Resolution Trust Corp. v.
Pardo, 980 F.2d 1445 (5th Cir. 1992); Pace Concerts, Inc. v. Smith, 990 F.2d 626 (5th
Cir. 1993). The United States Court of Appeals for the Fifth Circuit has held that the
failure to plead an affirmative defense may result in a wavier and the exclusion of
the defense from the case. LSREF2 Baron v. L.L.C. v. Tauch, 751 F.3d 394,398 (5th
Cir. 2014); Morris v. Homco Intern., Inc., 853 F.2d 337, 342 (5th Cir. 1988). A
defendant must plead an affirmative defense with enough specificity or factual
particularity to give the plaintiff fair notice of the defense that is being advanced.
Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). The fair notice requirement
is met if the defendant “sufficiently articulated the defense so that the plaintiff was
not a victim of unfair surprise.” Id. (citing Home Ins. Co. v. Matthews, 998 F.2d 305,
309 (5th Cir. 1993)). The Fifth Circuit has considered whether a justification exists
for the delay in raising defenses. Woodman, at 363; Trinity Carton Co., Inc. v. Falstaff
Brewing Corp., 767 F.2d 184 (5th Cir. 1985). Where there is no justification for the
delay, the Fifth Circuit recognized that the affirmative defenses were waived. See Id.

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Hancock Whitney filed a Complaint in Intervention (Doc. 13), to which Plaintiff
filed an answer (Doc. 26). Plaintiff did not list lack of consideration nor failure of
consideration as affirmative defenses in his answer. Plaintiff asserted these defenses
for the first time in his Motion to Summary Judgment and oppositions to the
summary judgment motions filed by the FDIC and Hancock Whitney.
The Court finds that Plaintiff’s assertion of lack of consideration and failure of
consideration at the motion for summary judgment stage and motion for
reconsideration phase is untimely. Rule 8 requires Plaintiff to have asserted these
defenses in his answer to Hancock Whitney’s Complaint in Intervention. Discovery
has already been propounded on the allegations and affirmative defenses that
Plaintiff previously asserted in his answer, and both the FDIC and Hancock Whitney
relied on the information from this discovery when preparing their motions for
summary judgment. Plaintiff’s failure to timely assert these affirmative defenses did
not provide Hancock Whitney, the holder of the note, with fair notice because Plaintiff
failed to sufficiently articulate the defenses in his answer such that Hancock Whitney
would not be a victim of unfair surprise. The Court’s reconsideration of its Ruling and
Order based on these affirmative defenses would undoubtedly prejudice Hancock
Whitney. Plaintiff presents no justification for the delay; thus, the Court must
conclude that Plaintiff’s failure to timely assert such defenses constitutes a waiver of
these affirmative defenses.

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B.

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Breach of Contract

Plaintiff argues that the summary judgment ruling was not appropriate
because FNBC breached a contractual duty under its Business Loan Agreement. (Doc
141-1 at p. 5). Hancock Whitney argues that Plaintiff has never pleaded a breach of
contract claim in his Complaint, and that Plaintiff should not be permitted to amend
his pleadings through a motion for reconsideration.
A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet
v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citing In re Transtexas Gas
Corp., 303 F.3d 571, 581 (5th Cir. 2002)). “Such a motion is not the proper vehicle for
rehashing evidence, legal theories, or arguments that could have been offered or
raised before the entry of the judgment.” Id. (citing Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990).
The Court finds that Plaintiff’s breach of contract argument is not supported
by the statutory purpose of a Rule 59(c) motion. Rather, it is an attempted improper
expansion of his pleadings. The record reflects that Plaintiff never pleaded a claim
for breach of contract in his Complaint. Plaintiff’s argument for breach of contract is
not based on any newly discovered evidence or on any allegation that the Court
committed a manifest error of law or fact. The Court finds that Plaintiff cannot now
plead a new claim in the instant motion, especially when the deadline to amend his
Complaint has expired. 1 Because Plaintiff has failed to point to newly discovered
evidence or proven that the Court has committed a manifest error of law or fact as
According to the scheduling order, the deadline to amend pleadings was January 31, 2019. See Doc.
37.
1

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required for relief under Rule 59(e), the Court finds no basis to reconsider its Ruling
and Order.
Accordingly,
IT IS ORDERED that Plaintiff’s Motion is DENIED.
Baton Rouge, Louisiana, this 16th day of April, 2020.

_____________________________________
JUDGE BRIAN A. JACKSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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