Stephens et al v. Holcomb Logging, LLC et al
MEMORANDUM OPINION re 153 Order on Motion to Alter Judgment. Signed by Senior Judge Glen H. Davidson on 10/15/15. (rel)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
LISA BEAM STEPHENS and
PAMELA BEAM DRAKE,
Wrongful Death Beneficiaries of
Truman Edward Beam
CIVIL ACTION NO.: 1: 13-cv-00244-GHD-DAS
PROGRESSIVE GULF INSURANCE COMPANY
HOLCOMB LOGGING, LLC; DARRYL HOLCOMB;
JAMES HOLCOMB; and IC TRUCKING
MEMORANDUM OPINION DENYING
PLAINTIFFS' MOTION TO ALTER OR AMEND JUDGMENT
Presently before this Court is a motion to alter or amend the Court's judgment  filed
by Plaintiffs Lisa Beam Stephens and Pamela Beam Drake ("Plaintiffs"). Garnishee Progressive
Gulf Insurance Company ("Garnishee) has filed a response, and Plaintiffs have filed a reply.
Upon due consideration, the Court finds that Plaintiffs' motion to alter or amend the Court's
judgment  is not well taken and shall be denied.
A. Federal Rule ofCivil Procedure 59 Standard
Plaintiffs' motion to alter or amend the Court's judgment  is urged under Rule 59 of
the Federal Rules of Civil Procedure. "While the Federal Rules of Civil Procedure do not
provide for a motion for reconsideration, such a motion may be considered either a Rule 59(e)
motion to alter or amend judgment or a Rule 60(b) motion for relief from judgment or order."
Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 n.l (5th Cir. 2004). Because the motion before
this Court was filed within 28 days of the Court's Order, the Court will treat the motion as a Rule
59(e) motion to alter or amend judgment. "Rule 59(e) was added to the Federal Rules of Civil
Procedure in 1946. Its draftsmen had a clear and narrow aim. According to the accompanying
Advisory Committee Report, the Rule was adopted to 'mak[e] clear that the district court
possesses the power' to rectify its own mistakes in the period immediately following the entry of
judgment." White v. NH Dep't ofEmp 't Sec., 455 U.S. 445, 450, 102 S. Ct. 1162, 71 L. Ed. 2d
325 (1982) (quoting Fed. R. Civ. P. 59 advisory committee's note on 1946 am., 5 F.R.D. 433,
476 (1946)). In reconsidering its judgment pursuant to Rule 59(e), the Court reconsiders matters
properly encompassed in its decision on the merits. See id at 451, 102 S. Ct. 1162.
A Rule 59 motion is the proper vehicle by which a party can "correct manifest errors of
law or fact" or "present newly discovered evidence." Templet v. HydroChem Inc., 367 F.3d 473,
477 (5th Cir. 2004) (quoting Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). A
party should not attempt to use the Rule 59 motion for the purpose of "rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of judgment." Id
The Fifth Circuit has held that
a 59(e) motion to reconsider should not be granted unless: (1) the
facts discovered are of such a nature that they would probably
change the outcome; (2) the facts alleged are actually newly
discovered and could not have been discovered earlier by proper
diligence; and (3) the facts are not merely cumulative or
Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 696-97 (5th Cir. 2003) (internal citation
B. Analysis and Discussion
In their motion to alter or amend judgment , Plaintiffs ask the Court to alter or
amend the Court's Order  and memorandum opinion  granting Garnishee's motion for
summary judgment , denying Plaintiffs' motion for summary judgment  and denying as
moot the remaining pending motions, including a motion to strike , a motion for extension of
time , a motion to appeal the Magistrate Judge's decision , a motion to expedite the
same , and a motion for entry of default .
Plaintiffs' motion to alter or amend contains several arguments previously urged in
Plaintiffs' motion for summary judgment and related briefing, including the following: (1) the
terms "otherwise covered" in the insurance policy do not require a valid final judgment
adjudging Darryl Holcomb or James Holcomb legally responsible for the subject accident; (2)
the Mobile Equipment as Insured Autos Endorsement modified the subject policy to include the
Mack pUllout truck; (3) because a final judgment was entered against Holcomb Logging, LLC,
an insured under the subject policy, liability coverage is warranted under the MCS-90
Endorsement; (4) uninsured motorist coverage could exist under the subject policy; and (5) the
Court should have addressed the claims of fraud, intentional misrepresentation, and so on, based
on the uninsured motorist coverage issue. These arguments fail to "demonstrate any grounds for
relief under Rule 59(e), such as manifest error of law or fact or the discovery of new evidence."
See Winding v. Geo Grp., Inc., 405 F. App'x 938, 939 (5th Cir. 2010) (per curiam).
Accordingly, Rule 59(e) relief is not proper on the aforementioned grounds. Nor is relief proper
on the other grounds raised by Plaintiffs in their motion to alter or amend which are as follows:
(1) the Court's Order and memorandum opinion do not address Plaintiffs' legal argument that
Garnishee failed to raise the issue of lack of notice as an affirmative defense in Garnishee's
original pleadings; and (2) the Court's Order and memorandum opinion do not address Plaintiffs'
then-pending motion for entry of judgment based on Garnishee's failure to have its answer to the
garnishment action supported by sworn affidavit, and this entitles Plaintiffs to an entry of
judgment and attorney's fees. The Court finds as follows.
With respect to Plaintiffs' argument concerning notice, the Court addressed this issue on
page 7 of its prior memorandum opinion  on the summary judgment motions:
First, Garnishee argues that Holcomb Logging, LLC never
tendered defense or indemnity of the underlying state-court suit to
Garnishee and never provided Garnishee with legal papers and
information pertaining to the suit, as required by the policy to
trigger a duty to defend. Plaintiffs argue as a threshold matter that
Garnishee has never set forth this contention as an affirmative
defense and is estopped from raising it at this juncture. The Court
finds to the contrary that Garnishee has adequately pled throughout
its answer and affirmative defenses filed in the case sub judice that
coverage under the Progressive policy was never triggered and,
thus, that Garnishee had no duty to defend Defendants in the
underlying state-court litigation. Furthermore, Garnishee was
never a party to the state-court case and therefore had no
opportunity to raise the duty to defend as an affirmative defense in
that proceeding. The Court finds that this threshold argument by
Plaintiffs is not well taken ....
With respect to Plaintiffs' argument concerning its motion for entry of judgment, the
Court notes as follows. On January 13,2015, Plaintiffs filed a motion for entry of default 
wherein they argued they were entitled to judgment as a matter of law under Mississippi Code §
11-35-31 because Garnishee failed to file its answer "on oath" pursuant to Mississippi Code §
11-35-25. As such, the motion was a dispositive motion requesting dismissal of the case on
The deadline for filing dispositive motions in the case sub judice was
November 11, 2014, according to the Case Management Order  entered on April 28, 2014.
Because Plaintiffs' motion for entry of default  was filed well after the dispositive motions
deadline and without seeking leave of Court to do so, the motion does not warrant consideration.
Because Plaintiffs' arguments in its motion to alter or amend judgment do not
"demonstrate any grounds for relief under Rule 59(e), such as manifest error oflaw or fact or the
discovery of new evidence," see Winding, 405 F. App'x at 939, Plaintiffs' motion to alter or
amend judgment must be denied.
For all of the foregoing reasons, Plaintiffs' motion to alter or amend judgment  is
A separate order in accordance with this opinion shall issue this day.
day of October, 2015.
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