Guillory v. Pellerin, et al

Filing 141

MEMORANDUM RULING re 126 MOTION for a Judgment Notwithstanding the Verdict MOTION for New Trial filed by David Wayne Guillory, 134 MOTION to Strike 126 MOTION for a Judgment Notwithstanding the Verdict MOTION for New Trial filed by Invacare Corp. Signed by Judge Patricia Minaldi on 4/27/09. (crt,Alexander, E)

RECEIVED
~N AKE CHARLES. LA L

A~R3,0 2009
IGNY A MOORE CLERK WESTERN DISTRICT OF LOUISIANA

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIViSION

DAVID WAYNE GUILLORY VS. MITCH PELLERIN ET AL

DOCKET NO. 2:07GW 1683 JUDGE MINALDI MAGISTRATE JUDGE KAY

MEMORANDUM RULING Before the Court is a deficient motion fur judgment not withstandIng the verdict (hcreinafter "JNOV") and a notion
fOT a

new trial, filed by the plaintiff David Wayne (Juillory [doc. 126], Mr.

Guillory filed this motion on April 7, 2009. The motion references Exhibits A, B, C, D; however, no exhibits arc attached. A notice ofdcficieni document was sent to Mr. Guillory informing him that the motion required a memorandum in support pursuant to LR 74, and giving him ten (10) days in which to submit a corrective document [doc. 127]. The notice also states that motions not corrected within ten days ~`xnay e stricken by the court." Id. InvacaTe filed a motion to strike, or alternatively b opposition to motion for judgment not withstanding the verdict J doe. 134]. PROCEDURAL hISTORY Mr. {iiu.illoi-y tiled suit in the 33rd JDC on May 31, 2007.' [nvacare removed the suit to federal court on Octobcr 10, 2 007,2 Mr. (Iiuiltory, who has spina bifida, brought suit for injuries he

~Compl.(doc~ 1-J].
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Notice of Removal [doe. 1j. 1

allegedly sustained after purchasing a pair of Invacare crutches that brok& On March 31 2009, this
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Court granted Invacare's summary judgment motion and dismissed this lawsuit in its entirety Icloc. 118]. I,) Motion to Strike Invacare urges this Court to strike the motion for judgment not withstanding the verdict because the notice states that fiti1ur~ o correct within ten days may result in the document being t stricken by the court, and because the plaintiff failed to correct the deficiency within cn days of receiving notice. In the alternative, Invacare opposes Mr. Guilloty's motion for judgment not withstanding the verdict. This Court shall deny the motion to strike and consider lnvacar&s arguments in opposition to Mr. Guillory's motion. IL) Motion for JNOV. Motion for a New Trial A.~ utign for JNOV M Mr. (iuillory does not specify under what federal rule he moves for a .[NOV. Pursuant to Fed. R. Civ~ . 50(b), P If the court does not grant a motion for judgment as a matter of law nmide under Rule 50(a), the court is considered to have subniitted the action to the jury subject to the court~slater deciding the legal questions raised by the motion. No later than 10 days after the entry ofjudgment--or if the motion addresses ajury issue not decided by a verdict, no later than 10 days after the jury was discharged--the movant may file a renewed motion forjudgment as a matter of law and may include an alternative or joint request for anew trial under Rule 59~ n ruling on the renewed motion, the court may: [ (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry ofjudgment as a matter of law.

3Compl, 2

This Court cannot consider a renewed motion forjudgmeni as a matter of law because such motions may only be considered after a matter was submitted to Ihejury. `Ibis matter was resolved via suninmry judgment motions, and no jury trial occurred. Accordingly, Mr. Guil lory' s rL'newed motion for judgment as a matter of law under Fed. R. Civ. P. 5 0(h) is hereby denied. B.) Met [on for a New Trial Under Fed. K. Civ..?. 59(a). (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues--and to any party--as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or (El) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in lèderal court. (2) Further Action After a Nonjury Trite!. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact arid conclusions of law or make new ones, and direct the entry of a new judgment. Although Fed. R. Civ. P. 59(a) does not specify whatj u.stifies a new trial, `the Filth Circuit has held that a new trial may be granted if `the verdict is against the weight of the evidence, the dam ages awarded are excessive, the trial was unfair, orprejudicial error was committed in its course." Mooit v. State Farm Mm. Auto. Ins Cv., 2008 WE 239832, *3 (E.D. La. Jan. 28, 2008) (quoting Smith v~ Transworld Drilling Ca~ 73 F.2d 6 it), 613 (5th Cir. 1985)). There has been neither ajury trial nor 7 a nonjury trial in this case. This matter was resolved based upon summary j udgment motio its. Accordingly, Mr. (luillory's notion for a new trial pursuant to Fed. R. Civ. P. 59(a) is herebydenied. C) Motion to Amend or Alter Judgment Out of an abundance of caution, this Court deems Mr. Guillory's motion as a motion to alter

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or amend a judgment pursuant to Fed. It Civ. P. 59(e). Unlike the relief requested in his motion, a Rule 5 9(e) notion is the proper vehicle by which to object to this Court's summary judgnent rulings dismissing his ease. Pursuant to Fed. R. Civ. P. 5 9(e), litigants may move to alter or amend aiud~xnentprovided such a motion is made "no later than 10 days after the entry of thejudgment." , Fed. R. Civ. P. 5 9(e). A motion to alter or amend a judgment is an extraordinary remedy and is seldom granted. Temp/ct v. JlydroChern, inc., 367 Fid 473,479(5th Cir+ 2004). A motion to alter or amend ajudgm ant "is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised prior to the entry of judgment." Id. Rule 59(e) "servejs] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence." Id. The Fifth Circuit has "held that an unexcused failure to present ev~ en cc d availablc at the time of sum mary judgment provides a valid basis for denying a subsequent motion for reconsideration." Id. At the outset, this Court notes that Mr. Guillory failed to present an opposition to either of Invacare's two summary judgment motions that resulted in this case's dismissal. In his motion, Mr. Guillory argues that lie has new infornation on three other pairs of aluminum crutches made in China that have broken in the past thirty days, marked Exhibits A, B, and C. These exhibits are not attached to the motion, and therefore do not constitute new evidence. Second, Mr. Ciuil]ory argues that he expects to have new evidence in April because the Spin a Bifida Association of America has arranged for him to see a specialist free of charge. The exhibits C and Dthat purportedly support this claim are not attached. Moreover, this Court does not consider this ~new evidenc&' because these appointments have notyetoccurred. Notably, trial in this matter was scheduled for May 11,2009, and all discovery deadlines have expired. Alternatively, this Court 4

deems arty Ibrthconing medical evidence to be an unexcused failure to present evidence th~ishould t have been available at the tine ofthe sum mary judgment motions. This Court also notes that the plaintitimissed two independent medical evaluation appointments scheduled by defendant Invacare that would also have been "free of charge" to him. This Court granted summary judgment only after the plaintiff missed these two appointments. Finally, Mr. Gui Ilory argues that his attorney does not have e-mail or a fax nachine, and cannot be served electronically. Mr. Gu.illory argues that this resulted in insufficient service of process, which equates to a failure of due process. Despite the l~ctthat this District utilizes mandatory electronic filing, attorney Carlton Hicks' apparent inability to comply with this requirement prompted the Magistrate Judge to order the Clerk's Office to provide copies of all filings through the United States Postal Service or through private carrier.4 Any allegations of insuflicient service and subsequent failure of due process are without merit; accordingly, IT IS ORDERED that the notion to strike I doc. 134] is hereby DENiED; IT IS FURTI H3R ORDERED that lhe motion for JNOV and for a new trial, filed by Mr. Guillory [doc. 126], is hereby DENIED. Lake Charles, Louisiana, this

~fl day of _______________,2009.

UNITED STATES DISTRICT JUDGE

~ Order (JLIIy 2, 2008) [doe. 3Sj.

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