Lopez et al v. United States of America

Filing 30

MEMORANDUM OPINION AND ORDER DENYING 27 Plaintiffs' Motion for Reconsideration and GRANTING 28 Defendant's Motion for Extension of Time to Answer. Signed by Judge Paul W. Grimm on 3/10/2016. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
RIGOBERTO GUEVARA LOPEZ et al.,

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PLAINTIFFS,

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v.

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UNITED STATES OF AMERICA,

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DEFENDANT.
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Case No.: PWG-14-2156

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MEMORANDUM OPINION AND ORDER
On August 17, 2015, Plaintiffs Rigoberto Lopez and Luis Villatoro filed a motion to
reconsider, Pls.’ Mot., ECF No. 27, and accompanying memorandum, Pls.’ Mem., ECF No. 271, with respect to this Court’s August 3, 2015, memorandum opinion and order, Mem. Op., ECF
No. 23, granting in part Defendant’s motion to dismiss with respect to Plaintiffs’ personal injury
claims.1 Plaintiffs argue for the first time that Maryland substantive law should apply with
respect to whether they are barred from bringing their claims after having elected to receive
certain personal injury protection (“PIP”) benefits. See Pls.’ Mem. 3. Additionally, Plaintiffs
repeat an argument previously rejected by this Court that they should not be treated as electing
PIP benefits and barred from bringing their personal injury claim because they did not cash their
PIP checks. See Pls.’ Mem. 8. Because Plaintiffs (i) raise the argument that Maryland law
should apply for the first time after previously conceding that Washington, D.C., law applied and
have not shown any clear error of law, (ii) repeat the argument, previously rejected by this Court,

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The motion is ripe for consideration. Defendant filed its timely opposition. Opp’n, ECF
No. 29. Plaintiffs did not file a reply, and the time to do so has passed. See Loc. R. 105.2(a). A
hearing is not necessary. See Loc. R. 105.6.

that electing PIP benefits should not preclude them from bringing personal injury claims, and
(iii) fail to show any other adequate grounds for relief from the August 3, 2015, order, Plaintiffs’
motion to reconsider will be DENIED.
Plaintiff moves “pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil
Procedure and Local Rule 105(10) . . . .” Pls.’ Mem. 1. A party may move to alter or amend a
final judgment under Rule 59 within twenty-eight days of the judgment’s issuance, or for relief
from a final judgment under Rule 60 after more than twenty-eight days have elapsed. See MLC
Auto., LLC v. Town of So. Pines, 532 F.3d 269, 277–80 (4th Cir. 2008); Knott v. Wedgwood, No.
DKC-13-2486, 2014 WL 4660811, at *2 (D. Md. Sept. 11, 2014). But, Rule 54(b) governs any
motion to alter, amend, or reconsider an order that is not a final judgment. Cezair v. JPMorgan
Chase Bank, N.A., No. DKC-13-2928, 2014 WL 4955535, at *1 (D. Md. Sept. 30, 2014) (citing
Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469–70 (4th Cir. 1991)).
Rule 54(b) provides that “any order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the parties . . . may be revised at
any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.” Fed. R. Civ. P. 54(b). As Defendant correctly indicates, see Opp’n 2 n.1, the order
Plaintiffs ask me to reconsider was an interlocutory order that dismissed only Plaintiffs’ personal
injury claims and left Lopez’s property damage claims pending; therefore, I will construe
Plaintiff’s motion as a Rule 54(b) motion for reconsideration. See Cezair, 2014 WL 4955535, at
*1; Fed. R. Civ. P. 1.
The Fourth Circuit has not stated a standard for review of a Rule 54(b) motion, but it has
said that, “generally at least, a review of an interlocutory order under Rule 54 is not subject to the
restrictive standards of motions for reconsideration of final judgments under Rule 60.”

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Fayetteville Investors, 936 F.2d at 1472; see Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d
505, 514 (4th Cir. 2003) (same). Nor is the standard for Rule 59(e) binding on review under
Rule 54. See Am. Canoe Ass’n, 326 F.3d at 514; Cezair, 2014 WL 4955535, at *1. Nonetheless,
“courts frequently look to these standards for guidance in considering such motions.” Cezair,
2014 WL 4955535, at *1; see Peters v. City of Mt. Rainier, No. GJH-14-955, 2014 WL 4855032,
at *3 n.1 (D. Md. Sept. 29, 2014) (looking to Rule 60(b) standard); Harper v. Anchor Pkg. Co.,
Nos. GLR-12-460 & GLR-12-462, 2014 WL 3828387, at *1 (looking to Rule 59(e) standard);
Potter v. Potter, 199 F.R.D. 550, 552 n.1 (D. Md. 2001) (applying Rule 59(e) standard).
A Rule 59(e) motion “need not be granted unless the district court finds that there has
been an intervening change of controlling law, that new evidence has become available, or that
there is a need to correct a clear error or prevent manifest injustice.” Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010). Rule 60(b) provides overlapping, but broader,
bases for relief from a court order:
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:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);

(3)

fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;

(4)

the judgment is void;

(5)

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; or

(6)

any other reason that justifies relief.

The Fourth Circuit has stated in dicta that these “rules of constraint . . . make sense when a
district court is asked to reconsider its own order” because “‘[w]ere it otherwise, then there
would be no conclusion to motions practice, each motion becoming nothing more than the latest
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installment in a potentially endless serial that would exhaust the resources of the parties and the
court—not to mention its patience.’” Pinney v. Nokia, Inc., 402 F.3d 430, 452–53 (4th Cir.
2005) (quoting Potter, 199 F.R.D. at 553); see Shields v. Shetler, 120 F.R.D. 123, 126 (D. Co.
1988) (observing that a motion for reconsideration “is not a license for a losing party’s attorney
to get a ‘second bite at the apple’”). “When parties file a motion with this court, they are
obligated to insure that it is complete with respect to facts, law and advocacy.” Potter, 199
F.R.D. at 553.
Plaintiffs are attempting two second bites at the apple.

First, Plaintiffs argue that

Maryland law, not Washington, D.C., law, should apply to whether PIP election waives
Plaintiffs’ ability to bring their personal injury claim. Plaintiffs do not identify any change in
controlling law or present previously unavailable factual material bearing on the matter. Rather,
after initially conceding that “the substantive law of the District of Columbia applies in this
matter,” Compl. ¶ 6, ECF No. 1, and failing to contest this issue in their opposition to
Defendant’s motion to dismiss, they are for the first time arguing that Maryland law should apply
to their claim. Plaintiffs have presented no evidence whatsoever that they were unable to make
this legal argument when briefing originally occurred on Defendant’s motion to dismiss. This
failure to present the legal argument originally by itself provides grounds for denying Plaintiffs’
motion.
Moreover, Plaintiffs’ own filings demonstrate how they have not met their burden for
reconsideration. Plaintiffs acknowledge that
[a] close review of the applicable case law reveals that there is a lack of binding authority
addressing the same facts, i.e., whether a Maryland resident who initially elects Maryland
PIP pursuant to an insurance contract executed and delivered in the States of Maryland, is
thereafter barred from bring [sic] a third party tort action for an automobile accident
occurring in the District of Columbia.

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Pls.’ Mem. 7.

Even if I ignore Plaintiffs’ admission that Washington, D.C., law is the

appropriate law to address their claim and look past their failure to address the choice-of-law
issue in their opposition, Plaintiffs admit that there is no “binding authority” that would require
me to rule in their favor. Therefore, there is no clear error of law that would support Plaintiffs’
motion to reconsider. See Robinson, 599 F.3d at 411.
Second, Plaintiffs argue that that they should not be treated as electing PIP benefits and
barred from bringing their personal injury claims because they did not cash their PIP checks. See
Pls.’ Mem. 8. I rejected this argument in my prior ruling. See Mem. Op. 8–9. “[I]t was
improper to use [a Rule 59(e)] motion to ‘ask the Court to rethink what the Court had already
thought through—rightly or wrongly.’” Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp. 2d 310,
320 (D. Md. 2014) (quoting Above the Belt, Inc. v. Bohannan Roofing, Inc., 99 F.R.D. 99, 101
(E.D. Va. 1983)). Plaintiffs are doing just that in arguing that it is a manifest injustice to dismiss
their personal injury claim in light of the fact that they did not cash their PIP check. This
repetition of an old argument, already rejected by this Court, is not grounds to grant Plaintiffs’
motion to reconsider.
In sum, Plaintiffs have not shown grounds for reconsidering the August 3, 2015
memorandum opinion and order under Rule 54(b). Plaintiffs’ motion to reconsider, ECF No. 27,
will be denied.
On the same day that Plaintiffs filed their motion to reconsider, Defendant filed a motion
for extension of time to file an answer. See Def.’s Mot., ECF No. 28. Having denied Plaintiffs’
motion to reconsider, I will grant Defendant’s motion so that it may file an answer with respect
to Lopez’s remaining claim.

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ORDER
Accordingly, it is this 10th day of March, 2016, hereby ORDERED that Plaintiffs’
motion to reconsider, ECF No. 27, is DENIED, and Defendant’s motion for extension of time,
ECF No. 28, is GRANTED. Defendant shall file its answer with respect to Lopez’s remaining
property damage claim by no later than April 8, 2016.
So ordered.

/S/
Paul W. Grimm
United States District Judge
dpb

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