Varrecchio v. Moberly et al

Filing 65

RULING denying 51 Motion for New Trial. Signed by Chief Judge Shelly D. Dick on 11/21/2019. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RACHEL VARRECCHIO

CIVIL ACTION

VERSUS

17-670-SDD-EWD

MICHELLE MOBERLY, ET AL

RULING
This matter is before the Court on the Motion for New Trial1 by Plaintiff Rachel
Varrecchio (“Varrecchio”). Defendant Michelle Moberly (“Moberly”) has filed a
Memorandum in Opposition2 to this motion. For the following reasons, Varrecchio’s
motion is DENIED.
I.

FACTS AND PROCEDURAL HISTORY3
On August 22, 2016, Varrecchio was involved in a motor vehicle accident with

Defendant Moberly in Orlando, FL.4 Varrecchio contends that she is a resident of
Louisiana and that Moberly is a resident of Ohio.5 Varrecchio filed suit originally in
the 23rd Judicial District Court, naming as defendants Moberly, Allstate Insurance
Company, and State Farm Mutual Automobile Insurance Company.6 State Farm
removed the matter on September 22, 2017.7

1

Rec. Doc. 51.
Rec. Doc. 53.
3
Rec. Doc. 42; Fifth Supplemental and Amending Complaint.
4
Rec. Doc. 25 p. 5.
5
Rec. Doc. 25 p. 2-3; Rec. Doc. 51-1 p. 16-17.
6
Rec. Doc. 1.
7
Id.
2

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On June 14, 2018, Moberly filed a Rule 12(B)(2) Motion to Dismiss for Lack of
Personal Jurisdiction.8 On July 2, 2018, Varrecchio filed a Memorandum in
Opposition to that motion.9 On February 21, 2019, this Court granted Moberly’s
Motion to Dismiss, finding that Moberly lacked sufficient contacts with Louisiana so
as to provide the Court with personal jurisdiction over her.10
Varrecchio now moves for a new trial under Rule 59, or in the alternative, to
amend the judgment and permit the matter to continue against Moberly’s insurers.
As a final alternative, Moberly asks the Court to transfer the matter to a federal district
court of proper venue and competent jurisdiction.
II.

APPLICABLE LAW
“In a non-jury case, a district court may grant a new trial when the Court

believes that it has committed a ‘manifest error of law or fact.’”11 Trial courts have the
power to grant a new trial when the verdict is “against the weight of the evidence,”12
or when the trial was unfair.13 Courts do not grant new trials unless it is reasonably
clear that prejudicial error has crept into the record or that substantial justice has not
been done, and the burden of showing harmful error rests with the party seeking new
trial.14

8

Rec. Doc. 47.
Rec. Doc. 49.
10
Rec. Doc. 50.
11
Barthelemy v. Phillips Petroleum Company, No. 96-2226, 1999 WL 169468 (E.D. La. Mar. 24, 1999)
(quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)(“Motions for a new trial ... must clearly
establish either a manifest error of law or fact.”)).
12
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996).
13
Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989).
14
National Union Fire Ins. of Pittsburgh, Pa. v. Puget Plastics Corp., 735 F.Supp.2d 650 (S.D. Tex. 2010).
9

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In the alternative to granting a new trial—and for the first time—Varrecchio
moves the Court to transfer the matter to a Court of competent jurisdiction and proper
venue. Unlike the broad discretion Congress has given to district courts when
considering a motion for new trial, a motion to alter or amend serves “the narrow
purpose of allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence and 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.”15 There are three grounds for altering or amending a judgment under Rule
59(e): “(1) an intervening change in controlling law, (2) the availability of new evidence
not previously available, or (3) the need to correct a clear error of law or prevent
manifest injustice.”16
III.

ANALYSIS
The Court previously ruled that Moberly had “no contacts with Louisiana other

than being involved in an accident with a Louisiana resident which occurred in
Florida,”17 and the Court found that Moberly had no business or property in
Louisiana.18 Therefore, the Court held that Moberly lacked sufficient contacts with
Louisiana so as to provide the Court with general personal jurisdiction over her.
Further, this Court also found that Moberly had not “purposefully availed herself of
the laws and privileges of Louisiana,” and “[n]one of the acts giving rise to the
accident occurred in Louisiana.”19 It is axiomatic that “jurisdiction will not be exercised

15

Knight v. Kellogg Brown & Root Inc., 333 Fed. Appx. 1, 8 (5th Cir. 2009).
Williamson Pounders Architects, PC, 681 F.Supp.2d 766, 767 (N.D. Miss. 2008).
17
Rec. Doc. 50 p. 8.
18
Id.
19
Id.
16

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because of the ‘mere[ly] fortuit[ous]’ fact that Plaintiff resides in the forum.”20 For
those reasons, the Court held that it lacked specific personal jurisdiction as well.21
Consequently, the Court granted Moberly’s Motion to Dismiss for Lack of Personal
Jurisdiction.22
The standard for granting a motion for new trial in a civil matter is a high bar,
and Varrecchio fails to meet the burden of proof required by Rule 59. Varrecchio
failed to demonstrate a new law or a change in existing law, and she likewise failed
to present newly discovered evidence in the matter, leaving only the possibility of
legal error or injustice. The Court finds no error of law or fact demonstrated by
Varrecchio in her Motion. Rather, Plaintiff’s argument that “jurisdiction over the
person . . . is allowed wherever there exists the Proper Venue for the controversy to
be litigated” conflates venue and personal jurisdiction, erroneously contending that
the two are virtually the same.23 The question of venue is separate from the question
of personal jurisdiction. Venue does not provide a court with personal jurisdiction, and
having personal jurisdiction over a defendant does not necessarily mean that venue
is proper for the matter. Put simply, venue is not determinative of personal jurisdiction.
The question before the Court in the Motion to Dismiss was not a question of venue
but of personal jurisdiction, and it required analysis under Rule 12(b)(2), not Rule
12(b)(3).

20

Rec. Doc. 50 p. 8 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).
Id.
22
Id.
23
Rec. Doc. 51-1 p. 2.
21

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Alternatively, Varrecchio requests that the Court maintain this action against
Moberly’s insurers, namely, Allstate and State Farm.24 Varrecchio argues that LA.
REV. STAT. 22:1269 (incorrectly cited by the plaintiff as LA. REV. STAT. 22:655) permits
pursuit of claims directly against insurers alone. Varrecchio is not wrong; that
statute—referred to as the Louisiana Direct Action Statute—does indeed permit direct
action against insurers alone, but only in a limited set of circumstances:
B. (1) The injured person . . . shall have a right of direct action
against the insurer . . . and, such action may be brought
against the insurer alone . . however, such action may be
brought against the insurer alone only when at least one of
the following applies:
a. The insured has been adjudged bankrupt by a
court of competent jurisdiction or when
proceedings to adjudge an insured bankrupt
have been commenced before a court of
competent jurisdiction.
b. The insured is insolvent.
c. Service of citation or other process cannot be
made on the insured.
d. When the cause of action is for damages as a
result of an offense or quasi-offense between
children and their parents or between married
persons.
e. When the insurer is an uninsured motorist
carrier.
f. The insured is deceased.25
Varrecchio has offered no evidence that satisfies the statute. Accordingly,
Varrecchio’s alternative request to proceed against Moberly’s insurers in this Court
is DENIED.

24
25

Rec. Doc. 51 p. 2.
LA. REV. STAT. 22:1269(B)(1).

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Finally, Varrecchio moves to transfer this matter to a court of competent
jurisdiction and proper venue.26 This relief was not requested previously.27 A Rule 59
motion is improper if it advances a position that a party failed to advance prior to the
judgment that the party now seeks to amend.28 Moreover, Varrecchio fails to show
sufficient grounds for the requested relief. Amendment of a judgment is an
extraordinary remedy that should be used sparingly, such as when a court
fundamentally misunderstood the facts or the controlling law.29 There is no manifest
injustice suffered here as a result of this Court’s granting of Moberly’s Motion to
Dismiss; Moberly even concedes that a new lawsuit may be filed in Florida where the
accident occurred.30 The Court therefore finds that there are not sufficient grounds
for amendment of its prior judgment, and this alternative request for relief is DENIED.
IV.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for New Trial31 and all alternative

requests made therein are DENIED.
IT IS SO ORDERED.
Baton Rouge, Louisiana on this 21st day of November, 2019.
____

S

____________________________________
SHELLY D. DICK, CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

26

Rec. Doc. 51 p. 2.
See Rec. Doc. 49.
28
See Naquin v. Elevating Boats, L.L.C., 817 F.3d 235, 240 n.4 (5th Cir. 2016); Perez v. Lorraine Enters.,
Inc., 769 F.3d 23, 28 (1st Cir. 2014).
29
See In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002); Sentry Select Ins. Co. v. Home State
County Mut. Ins. Co., 582 Fed. Appx. 282 (5th Cir. 2014); Williams v. Thaler, 602 F.3d 291, 303-304 (5th
Cir. 2010).
30
Rec. Doc. 51-1 p. 17.
31
Rec. Doc. 51.
27

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