Harper v. Academy of Training School, LLC et al
MEMORANDUM RULING denying 28 Motion for Reconsideration re 25 Order on Motion to Compel. Signed by Magistrate Judge Kathleen Kay on 9/13/2017. (crt,FinnSld, P)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
CIVIL ACTION NO. 2:16-cv-1266
UNASSIGNED DISTRICT JUDGE
ACADEMY OF TRAINING SCHOOL, LLC
and PROGRESSIVE BUILDINGS, LLC
MAGISTRATE JUDGE KAY
Before the court is a Motion for Reconsideration [doc. 28], filed by plaintiff Carolyn
Harper in response to our ruling [doc. 25] denying her Motion to Compel Discovery Responses
[doc. 16]. Academy of Training School, LLC and Progressive Buildings, LLC (“defendants”)
oppose the motion. Doc. 33.
In this suit the plaintiff, a licensed practical nurse and former employee of defendant
Academy of Training School, LLC,1 claims a violation of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq., based on the defendants’ alleged failure to properly compensate her for the overtime
hours she worked. Doc. 1. In the Motion to Compel [doc. 16], plaintiff sought production of time
sheets showing her hours worked. Through their response, defendants stated that they had provided
all of the documentation they had and that, while they believed they no longer possessed the
weekly time sheets for most of the relevant dates, they did have and had produced daily sign-in
Plaintiff alleges that her salary was paid by defendant Progressive Buildings, LLC, and that both defendant LLCs
are owned by the same individual. Doc. 1, p. 2.
sheets, which they asserted were an accurate log of the hours worked by plaintiff. Doc. 24. They
also maintained that, although plaintiff had indicated that she did not consider these sign-in sheets
responsive, the data in those sheets should match with the time sheets sought by plaintiff unless
she had misrepresented her hours worked. Id. Noting that the plaintiff had not filed a reply within
the allotted time and that we could not compel the defendants to produce what they did not have,
we denied the Motion to Compel in a ruling issued on August 9, 2017. Doc. 25.
Plaintiff filed his motion to reconsider later that same day, offering that the failure to file a
reply was due to a good-faith error on counsel’s part in misreading an electronic order that
terminated a previously set trial date. Doc. 28, att. 1, p. 2. Plaintiff submitted an out of time reply
to the Motion to Compel on the same day, arguing that the daily sign-in sheets are not responsive
and requesting alternative relief under Rule 37(b) of the Federal Rules of Civil Procedure in the
event that we find defendants are not able to produce the time sheets. Doc. 29. The defendants
oppose the Motion to Reconsider. Doc. 33. They offer continuing opposition to the notion that
they have not met their discovery obligations and that plaintiff is entitled to any alternative relief
for their failure to produce the time sheets. Id.
LAW & ANALYSIS
The Federal Rules of Civil Procedure do not recognize a “Motion to Reconsider.”
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on
other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). However, as plaintiff
notes, when such motions challenge a prior judgment on the merits they are construed as motions
to alter or amend under Rule 59(e) if served within ten days of the judgment, or otherwise as
motions for relief from judgment under Rule 60(b). Id. Where the motion to reconsider relates to
an interlocutory order, however, the motion is properly construed under Rule 59(e) regardless of
how much time has passed between the court’s ruling and the motion for reconsideration.2 Namer
v. Scottsdale Ins. Co., 314 F.R.D. 392, 394 (E.D. La. 2016).
A motion filed under Rule 59(e) “serves the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.” Id. at 394–95 (quoting
Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)) (alteration omitted). Although this
motion is an extraordinary remedy “and should not be used to relitigate old matters, raise new
arguments, or present evidence that could have been raised prior to the entry of judgment,” the
district court has considerable discretion to grant or deny relief under Rule 59(e). Roman v.
Western Mfg., Inc., 2010 WL 5092977, *2 (W.D. La. Nov. 29, 2010) (citations omitted). A Rule
59(e) motion is properly granted when (1) an intervening change in controlling law has occurred,
(2) new evidence has become available, or (3) it is necessary to correct a clear error of law or
prevent manifest injustice. Id. (citing Illinois Cent. R. Co. v. Harried, 2010 WL 382323, *2 (S.D.
Miss. Jan. 28, 2010).
Here the motion is not to correct any error on the part of the court or based on the discovery
of new evidence, but rather to allow the court to consider the arguments plaintiff’s counsel would
have made had he filed his reply brief within the deadlines. See doc. 34, p. 3. As the defense notes,
the deadline for filing a reply brief in this matter was unambiguous. See docs. 18, 19. Under these
deadlines, the reply memorandum was due within ten days after filing of the response, fixing such
deadline at Monday, August 7, 2017, after the response was filed on July 27, 2017, because the
ten-day limit ended on a Sunday. Docs. 19, 24; see FED. R. CIV. P. 6(a). The plaintiff’s reply was
This conclusion was reached by the Eastern District of Louisiana in reliance on the Fifth Circuit’s determination that
“[i]nterlocutory orders . . . are not within the provisions of 60(b).” Namer, 314 F.R.D. at 394 (quoting McKay v.
Novartis Pharm. Corp., 751 F.3d 694, 701–02 (5th Cir. 2014)). It does not appear that any other court in the Western
District of Louisiana has adopted this finding yet. However, as this motion was filed fewer than ten days after our
order, it would be construed as a Rule 59(e) motion under either Namer or Lavespere.
submitted on August 9, 2017, the same day that this court issued its order denying the motion to
A motion to reconsider is not available to allow plaintiff to avoid the ramifications of
missing a deadline. Even if we had considered her opposition, however, the Motion to Compel
would have nonetheless be denied as defendants replied that they did not possess the information
sought and offered instead the complained-of time sheets which, admittedly, were not responsive
to the information sought. We cannot compel production of something defendants do not have.
To the extent that plaintiff seeks an affirmative statement that there are no time sheets in order to
support a claim of records-keeping violations under 29 U.S.C. § 211(c), plaintiff may rely on the
statements offered by defendants in their response to the motion to compel.
Insofar as plaintiff is granted no relief on the Motion to Compel, neither is she entitled to
sanctions. We also note, however, that her claim for sanctions under Rule 37(b) would have been
denied, even had her Motion to Compel been granted, as Rule 37(b) allows for sanctions when a
party fails to obey discovery orders. See FED. R. CIV. P. 37(b)(2)(A). Plaintiff identified no order
of this court requiring defendants to produce the time sheets.
Based on the foregoing, the Motion to Reconsider [doc. 28] is DENIED.
THUS DONE AND SIGNED in Chambers this 13th day of September, 2017.
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