Thomas v. Nofal et al

Filing 80

ORDER denying 71 Motion for Attorney Fees; denying 72 Motion to Amend/Correct. Signed by District Judge Sharion Aycock on 11/5/2013. (psk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
MARY LEE THOMAS, Administratrix of
The Estate of Shenika Shunta Thomas,
Deceased
V.

PLAINTIFF
CAUSE NO.: 4:10CV123-SA-JMV

DR. ASHRAF M. NOFAL; DR. MARILYN McLEOD;
DR. HILTON ONEAL; NEADREE EDWARDS, CFNP;
and DELTA REGIONAL MEDICAL CENTER

DEFENDANTS

ORDER ON MOTIONS
This Court entered judgment in this case on March 7, 2013, finding that “[b]ecause
Plaintiff has a pending state court claim for wrongful death, her claims in this Court are
dismissed.” Plaintiff now seeks to reinstate this action because the state court case had been
voluntarily dismissed over two years prior to the Court’s determination.
Factual and Procedural Background
Plaintiff filed an action in the Washington County Circuit Court against Dr. Ashraf Nofal
on October 21, 2009. After the Circuit Court held Plaintiff’s request to add an additional three
defendants in abeyance, in an effort to file her claim within the statute of limitations, Plaintiff
filed a second state court action against Dr. Nofal and those same three defendants. The second
state court action was then removed to the federal court on October 4, 2010. Shortly thereafter,
Defendants filed a Motion to Dismiss [10] on the basis that Plaintiff’s pending wrongful death
suit in state court required dismissal of the federal action pursuant to Mississippi Code Section
11-7-13. Plaintiff responded to the Motion to Dismiss on November 22, 2010. Defendant then
replied on April 21, 2011. In the meantime, Plaintiff voluntarily dismissed the initial state court

action on December 16, 2010. Neither party sought to supplement the record or inform the Court
of this important point while the motion to dismiss was pending.
After the Court dismissed Plaintiff’s action, she now asserts that the Court must correct
its manifest error of fact and reopen the case since the state court action was not pending when
the Court entered its final judgment.
Reconsideration Standard and Analysis
A Rule 59(e) motion “calls into question the correctness of a judgment.” In re Transtexas
Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). The Fifth Circuit has held that such a motion is not
the proper vehicle for rehashing evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment. Simon v. United States, 891 F.2d 1154, 1159 (5th
Cir. 1990). Rather, Rule 59(e) “serve[s] the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.” Waltman v. Int’l Paper
Co., 875 F.2d 468, 473 (5th Cir. 1989) (internal quotations omitted).
Because Plaintiff could have, and should have, informed the Court of the dismissal of the
state court wrongful death action, reconsideration of the dismissal of this cause of action is
inappropriate. The state court action was voluntarily dismissed on December 16, 2010. This
Court dismissed the action on March 7, 2013. The Plaintiff, therefore, had two years to alert the
Court to the fact that she dismissed the state court action, especially in light of the fact that the
Defendant’s motion was premised on the pending and ongoing nature of the state court action.
Accordingly, Plaintiff’s request for reconsideration of the dismissal of this action is DENIED.
Attorneys’ Fees
Defendant Ashraf M. Nofal, M.D., has filed a Motion for Attorneys’ Fees and Costs
pursuant to Federal Rule of Civil Procedure 54(d) and 42 U.S.C. § 1988. Dr. Nofal insists that

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he has incurred $41,268.86 in attorneys’ fees and costs since this action was removed to federal
court.
Under § 1988, a party that wants to recover attorney’s fees incurred in a prior proceeding
must have prevailed in that proceeding. 42 U.S.C. § 1988(b) (“In any action or proceeding to
enforce [§ 1983] a court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee as part of the costs . . . .”); Castellano v. Fragozo, 311 F.3d 689, 711 (5th Cir.
2002), reh’g granted, 321 F.3d 1202 (5th Cir. 2003). To be a prevailing party under § 1988, a
plaintiff must obtain actual relief, such as an enforceable judgment. Farrar v. Hobby, 506 U.S.
103, 111, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992); Hole v. Tex. A&M Univ., 360 F. App’x 571
(5th Cir. 2010). Although the Fifth Circuit has admitted that the term “prevailing party” is “far
from self-defining,” it has outlined the “definable core limits” on the definition of “prevailing
party” as “obtain[ing] a court order in his favor that directly relates to the merits,” along with a
showing of “some causal connection between the suit and the events that moot his claim . . . .”
Smith v. Thomas, 687 F.2d 113, 116 (5th Cir. 1982) (quoting Davis v. City of Ennis, 520 F.
Supp. 262, 265-66 (N.D. Tex. 1981)).
As noted above, the Court’s Order dismissing the case was premised on the Mississippi
statute which allows only one wrongful death action to be brought. See MISS. CODE ANN. § 11-713.

Indeed, the Mississippi Supreme Court has held that the first court to properly take

jurisdiction of a wrongful death action shall, so long as that action is pending, have exclusive
jurisdiction and any other subsequent filed action for the same death shall be of no effect. Long
v. McKinney, 897 So. 2d 160 (Miss. 2004). Accordingly, the Court dismissed Plaintiff’s action
because this Court lacked jurisdiction over the matter. Because the Court failed to reach the

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merits of the case, the Court will not recognize Defendant Nofal as a “prevailing party.” See
Smith, 687 F.2d at 116. Thus, attorneys’ fees pursuant to 42 U.S.C. § 1988 are not proper.
Further, the Court finds attorneys’ fees under Federal Rule of Civil Procedure 54(d)
improper as well. The Court determines that, in its discretion, Defendant Nofal is not entitled to
attorneys’ fees. Although the Court recognizes that it was Plaintiff’s burden to supplement the
record as to the dismissal of the initial state court proceeding, Defendant Nofal’s knowledge of
the same and failure to notify the Court of the dismissal is troubling. Accordingly, the Court
exercises its discretion to deny award attorneys’ fees in this matter.
Conclusion
The Court DENIES Plaintiff’s Motion to Alter or Amend the Judgment [72] and
Defendant Nofal’s Motion for Attorneys’ Fees [71].
SO ORDERED, this the 5th day of November, 2013.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE

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