Payne v. University of Southern Mississippi et al

Filing 167

MEMORANDUM OPINION AND ORDER granting in part and denying in part 152 Motion for Reconsideration. Signed by District Judge Keith Starrett on 4/7/2014 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
THOMAS PAYNE

PLAINTIFF

V.

CIVIL ACTION NO. 1:12-CV-41-KS-MTP

THE UNIVERSITY OF SOUTHERN
MISSISSIPPI, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons stated below, Defendants’ Motion for Partial Reconsideration
[152] is granted in part and denied in part.
The Court discussed the background of this case in its Memorandum Opinion
and Order [147] of February 21, 2014. Payne v. Univ. of S. Miss., No. 1:12-CV-41-KSMTP, 2014 U.S. Dist. LEXIS 22052 (S.D. Miss. Feb. 21, 2014). Defendants now seek
amendment of the Court’s rulings regarding 1) Plaintiff’s claim for intentional
infliction of emotional distress, 2) Plaintiff’s claim for fraudulent misrepresentation,
3) the application of the Mississippi Tort Claims Act (“MTCA”) to Plaintiff’s state-law
claims, and 4) Plaintiff’s demand for prospective injunctive relief.
A.

Standard of Review
“A motion asking the court to reconsider a prior ruling is evaluated either as a

motion . . . under Rule 59(e) or . . . under Rule 60(b). The rule under which the motion
is considered is based on when the motion is filed. If the motion is filed within twentyeight days after the entry of judgment, the motion is treated as though it was filed
under Rule 59, and if it was filed outside of that time, it is analyzed under Rule 60.”

Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n. 2 (5th Cir. 2012). Defendants’
Motion for Partial Reconsideration [152] was filed within twenty-eight days of the
Court’s Memorandum Opinion and Order [147] of February 21, 2014, and Rule 59(e)
applies.
“A Rule 59(e) motion calls into question the correctness of a judgment.” Templet
v. Hydrochem Inc., 367 F.3d 473, 478 (5th Cir. 2004). “[S]uch 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. Rather, Rule 59(e) serves the narrow
purpose of allowing a party to correct manifest errors of law or fact or to present newly
discovered evidence.” Id.; see also United Nat’ Ins. Co. v. Mundell Terminal Servs., 740
F.3d 1022, 1031 (5th Cir. 2014). It is “an extraordinary remedy that should be used
sparingly.” Templet, 367 F.3d at 478.
B.

IIED
Defendants argue that Plaintiff failed to present sufficient proof to support a

claim for intentional infliction of emotional distress. They did not, however, present
this argument in their original motion and brief [106, 107]. Although they presented
it in their original reply [131], the Court does not “consider arguments raised for the
first time in reply briefs.” Gillaspy v. Dallas Indep. Sch. Dist., 278 F. App’x 307, 315
(5th Cir. 2008).
The Court concludes, therefore, that Defendants could have presented this
argument in their original motion, but they chose not to do so. “Motions for
reconsideration should not be used to raise arguments that could have been made
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before the entry of judgment . . . .” Nationalist Movement v. Town of Jena, 321 F. App’x
359, 364 (5th Cir. 2009). Accordingly, the Court denies Defendants’ Motion for Partial
Reconsideration [152] with respect to Plaintiff’s IIED claim.
C.

Fraudulent Misrepresentation
Defendants argue that Plaintiff does not have sufficient evidence to prove the

necessary elements of fraudulent misrepresentation. Defendants did not present this
argument in their original motion and briefs [106, 107, 131], although they could have
done so. Therefore, the Court denies Defendants’ Motion for Partial Reconsideration
[152] with respect to Plaintiff’s fraudulent misrepresentation claim.1 Templet, 367 F.3d
at 478; Nationalist Movement, 321 F. App’x at 364.
D.

MTCA
Defendants argue that they are immune from liability for Plaintiff’s state-law

claims under the MTCA’s discretionary function exemption. Once again, Defendants
did not present this argument in their original motion and briefs [106, 107, 131],
although they could have done so. Therefore, the Court denies Defendants’ Motion for
Partial Reconsideration [152] with respect to the question of discretionary function
exemption under the MTCA. Templet, 367 F.3d at 478; Nationalist Movement, 321 F.
App’x at 364.
E.

Prospective Injunctive Relief
1

To the extent Defendants contend that they first became aware of the nature
of Plaintiff’s fraudulent misrepresentation claim at the hearing held on February
25, 2014, the Court notes that Defendants had the entire discovery period to explore
the nature of Plaintiff’s claims.
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Finally, Defendants argue that Plaintiff does not have standing to assert a claim
for prospective injunctive relief. “[P]laintiffs may lack standing to seek prospective
relief even though they have standing to sue for damages.” Society of Separationists,
Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir. 1992) (citing City of Los Angeles v. Lyons,
461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). “[P]ast exposure to illegal
conduct does not in itself show a present case or controversy regarding injunctive relief
. . . if unaccompanied by any continuing, present adverse effects.” Id. (quoting Lyons,
103 S. Ct. at 1665). Therefore, “[t]o obtain equitable relief for past wrongs, a plaintiff
must demonstrate either continuing harm or a real and immediate threat of repeated
injury in the future.” Id.; see also Funeral Consumers Alliance, Inc. v. Serv. Corp. Int’l,
695 F.3d 330, 342 (5th Cir. 2012).
In the Complaint [1-2], Plaintiff sought injunctive relief in the form of “specific
performance,” promotion, and an order for Defendants to follow the Faculty Handbook
and stop certain alleged adverse employment actions. Plaintiff is no longer an
employee of the University. He resigned in December 2012. Therefore, as he is no
longer employed by the University, there is no possibility of “continuing harm or a real
and immediate threat of repeated injury in the future.” Herman, 959 F.2d at 1285.
Accordingly, Plaintiff can not obtain these forms of injunctive relief.2

2

Although Defendants did not present this argument before now, standing
implicates the Court’s jurisdiction. Cibolo Waste, Inc. v. City of San Antonio, 718
F.3d 469, 473 (5th Cir. 2013) (Article III standing is a threshold issue of
jurisdiction). Therefore, Defendants may raise the issue at any time, and the Court
must address it. Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th
Cir. 1981) (federal courts must constantly examine the basis of jurisdiction).
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However, Plaintiff now desires reinstatement to his position. Defendants argue
that no such claim is properly before the Court because Plaintiff failed to plead it, but
they have not cited any authority holding that a plaintiff’s failure to specifically
request the remedy of reinstatement precludes its award. Indeed, Rule 54 provides that
a “final judgment should grant the relief to which each party is entitled, even if the
party has not demanded that relief in its pleadings.” FED. R. CIV. P. 54(c). Accordingly,
the Fifth Circuit has held that a plaintiff’s failure to “expressly request” an award of
front pay did not preclude the district court from awarding it. Reneau v. Wayne Griffin
& Sons, Inc., 945 F.2d 869, 870 (5th Cir. 1991) (citing FED. R. CIV. P. 54(c)). This is an
analogous situation.
To the extent Defendants argue that Plaintiff’s reinstatement to the job from
which he previously resigned is neither feasible nor merited, they have not adequately
briefed that issue, and, in any case, Plaintiff has not had the opportunity to respond
to it.
For these reasons, the Court grants Defendants’ Motion for Reconsideration
[152] with respect to Plaintiff’s requests for prospective injunctive relief in the form of
specific performance, promotion, and an order for Defendants to follow the Faculty
Handbook and stop certain alleged adverse employment actions, but the Court denies
Defendants’ Motion for Reconsideration [152] with respect to Plaintiffs’ new request
for reinstatement.
F.

Conclusion
For all of the reasons stated above, the Court grants in part and denies in
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part Defendants’ Motion for Partial Reconsideration [152]. The Court grants the
motion as to Plaintiff’s specific demands for prospective injunctive relief in the
Complaint, but the Court denies it in all other respects.
SO ORDERED AND ADJUDGED this 7th day of April, 2014.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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