Hawn v. Hughes et al

Filing 177

MEMORANDUM OPINION denying defendant's motion to reconsider and finding moot plaintiff's motion to strike. Signed by Senior Judge Neal B. Biggers on 10/16/15. (jww)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
JOHN A. HAWN, BRYAN LINDSEY,
HEATHER SEAWRIGHT, RONNIE HORTON,
and MATILDA MOORE
v.

PLAINTIFFS
CAUSE NO. 1:13-CV-000036-NBB-DAS

CHRISTOPHER (C.G.) HUGHES,
in His Individual Capacity; and
MICHAEL BERTHAY, in His Individual Capacity

DEFENDANTS

MEMORANDUM OPINION
This cause comes before the court upon defendant Michael Berthay’s motion to vacate
and reconsider his denial of summary judgment. After due consideration of the motion,
responses, and the attached exhibits, the court is ready to rule.
On May 5, 2015, defendant Berthay filed a motion requesting the court vacate the order
denying summary judgment issued on September 8, 2014, and reconsider the merits of his
motion. The present motion to vacate brings forth two arguments in support. Berthay first
argues the writing judge, not the undersigned, was prejudiced at the time Berthay’s summary
judgment motion was pending before the court. Second, Berthay argues that no material fact
issue is present in this cause and that a ruling as a matter of law is appropriate.
The first issue before the court is resolved by submitted exhibits. Berthay contends the
previous judge in this case may have been prejudiced at the time of ruling on Berthay’s motion
for summary judgment because a relative of the judge is currently being represented by
plaintiff’s counsel in an unrelated case. When Berthay filed his motion for reconsideration, the
initial date of the relative’s attorney-client relationship with counsel was unclear. Subsequent
responses by plaintiff’s counsel made clear, however, that the relative’s attorney-client

relationship began after the previous judge ruled on Berthay’s motion for summary judgment.
Once the previous judge became aware of defense counsel’s objection, he recused himself from
the case and wrote defense counsel herein. An explanation of the timeline follows.
Berthay filed his motion for summary judgment on January 28, 2014. The court issued
its order and memorandum denying summary judgment on September 8, 2014. The relative’s
“Client Information Sheet” presented by counsel records September 11, 2014, as the relative’s
initial office visit date for the purpose of discussing his case. Plaintiff’s counsel provides this
client information sheet as an attached exhibit in response to Berthay’s motion to vacate and
reconsider summary judgment. The relative’s attorney-client relationship began three days after
the previous judge ruled on defendant Berthay’s motion for summary judgment. The court finds
this exhibit sufficient to show no circumstance existed wherein the previous judge’s impartiality
could be questioned at the time the court ruled on defendant Berthay’s motion for summary
judgment.
In his second argument, Berthay asserts the court wrongly determined that a material fact
issue exists regarding whether he has the authority to discipline or terminate officers under his
command. This disputed material fact was the basis for denial of Berthay’s motion for summary
judgment. This argument is not settled by exhibits alone. The court’s standard of review for a
reconsideration of this issue applies.
The Federal Rules of Civil Procedure do not specifically provide for a motion for
reconsideration; however, the Fifth Circuit Court of Appeals has held that a district court may
entertain such a motion and treat it as a motion to alter or amend under Rule 59(e) or as a motion
for relief from judgment under Rule 60(b). Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1
(5th Cir. 2004). “If the motion for reconsideration is filed and served within ten days of the

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judgment or order of which the party complains, it is considered a Rule 59(e) motion; otherwise
it is treated as a Rule 60(b) motion.” Shepherd, 372 F.3d at 328 n.1.
The court order denying defendant Berthay’s motion for summary judgment was entered
on September 8, 2014. On May 7, 2015, Berthay filed his motion for reconsideration, far beyond
the ten day limitation wherein the Rule 59(e) standard would apply. Therefore, this court applies
the Rule 60(b) standard to review this motion.
Federal Rule of Civil Procedure 60(b) provides in pertinent part:
On motion and just terms, the court may relieve a party . . . from [an] order [ ] for
the following reasons: (1) mistake . . . (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, misrepresentation, or misconduct by an opposing
party; (4) the judgment is void . . . or (6) any other reason that justifies relief.
A motion for relief under rule 60(b) is subject to the discretion of the court. Hand v.
U.S., 441 F.2d 529 (5th Cir. 1971). “Courts are disinclined to disturb judgments under the aegis
of Rule 60(b).” Pease v. Pakhoed, 980 F.2d 995, 998 (5th Cir. 1993). Rule 60(b) relief is
“extraordinary . . . and the requirements of the rule must be strictly met.” Longden v.
Sunderman, 975 F.2d 1095, 1102 (5th Cir. 1992).
Defendant Berthay does not address whether the motion is properly before the court
through application of Rule 59(e) or Rule 60(b). Nor does Berthay bring forth any precedent in
support of reconsideration or attempt to adhere to the requirements of Rule 60(b). Generally,
Berthay contends his motion for summary judgment was “incorrectly and wrongly decided”
because two deponents, who exposed a disputed material fact, “were not aware of the
[consequences] of their innocent and general testimony.”
After the court denied Berthay’s summary judgment motion, Berthay’s counsel deposed
the two witnesses seeking a more favorable testimony. Defendant characterizes the newly

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clarified testimony as resolving the material factual dispute. However, defendant Berthay is
alone in this characterization. The depositions do not reflect the same. The court is not
convinced the proffered testimonies resolve the disputed material fact and finds that in many
instances they contradict the conclusory nature of defendant’s brief. Defendant Berthay has
failed to meet his burden under Rule 60(b). Furthermore, the court is concerned by defense
counsel’s cavalier attempt to re-depose witnesses on this issue until the narrative meets his
approval.
Conclusion
Based on the foregoing reasons, defendant Berthay’s motion requesting this court vacate
its denial of summary judgment should be denied. Also, plaintiff’s motion to strike defendant’s
motion to vacate is pending before this court. This motion is now moot. A separate order in
accord with this opinion shall issue this day.
This, the 16th day of October, 2015.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
SENIOR U.S. DISTRICT JUDGE

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