Thomas v. Nofal et al

Filing 85

ORDER granting 81 Motion to Alter Judgment. Signed by District Judge Sharion Aycock on 4/8/2014. (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 RECONSIDERATION
Plaintiff seeks a second reconsideration of this Court’s Order and Memorandum Opinion
dismissing her action on March 7, 2013. Plaintiff contends that because the dismissal of her
cause of action was for lack of subject matter jurisdiction, the dismissal should be without
prejudice. Defendants argue that Plaintiff’s late filing of her second Motion for Reconsideration
is untimely and should be denied.
Factual and Procedural Background
In its original Memorandum Opinion, the Court held that “[b]ecause Plaintiff has a prior
filed state court action pending regarding the alleged wrongful death of Shenika Thomas, this
action is DISMISSED with prejudice.” Plaintiff contends that because the Court dismissed the
action based on a lack of jurisdiction, the dismissal should have been without prejudice.
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).
While Federal Rule of Civil Procedure 59(e) does require a motion to alter or amend a
judgment be filed within twenty-eight days of entry of the judgment, Rule 60 is more permissive
where the court has made a mistake in its final judgment. Indeed, Rule 60 only requires that the
motion be filed “no more than a year after the entry of the judgment . . . .” The Court construes
Plaintiff’s request for reconsideration under Rule 60. Plaintiff has clearly satisfied the timeliness
requirement pursuant to Federal Rule of Civil Procedure 60.
The Court erroneously dismissed Plaintiff’s wrongful death claim with prejudice. See
Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991) (where district court dismissed plaintiff’s
case for a jurisdictional issue and did not reach the merits of the case, entry of judgment of
dismissal with prejudice was error).
Conclusion
The Court GRANTS Plaintiff’s Motion to Alter or Amend the Judgment [81] and
AMENDS the Judgment to be WITHOUT PREJUDICE.
SO ORDERED, this the 8th day of April, 2014.
/s/ Sharion Aycock_________
U.S. DISTRICT JUDGE

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