Munn v. City of Ocean Springs, Mississippi et al
Filing
123
ORDER denying 120 Motion for Reconsideration Signed by Chief District Judge Louis Guirola, Jr on 06/15/2016 (Guirola, Louis)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
STEPHEN MUNN
v.
PLAINTIFF
CAUSE NO. 1:14CV428-LG-RHW
CITY OF OCEAN SPRINGS, MISSISSIPPI,
et al.
DEFENDANTS
ORDER DENYING MOTION FOR RECONSIDERATION UNDER RULE
59(e) AND FOR CERTIFICATION UNDER RULE 54(b)
BEFORE THE COURT is the [120] Motion for Reconsideration filed by
Plaintiff Stephen Munn pursuant to Federal Rule of Civil Procedure 59(e) with
respect to the Court’s [119] Order Granting in Part and Denying in Part Motion for
Summary Judgment entered on May 12, 2016. In that Order, the Court entered
summary judgment in favor of Defendant the City of Ocean Springs, Mississippi,
but denied summary judgment in favor of Defendants Phillip Pearson and Jonathan
Grimes on Munn’s claims brought pursuant to 42 U.S.C. § 1983.1
Munn now asks the Court to reconsider dismissal of the City. In the
alternative, Munn requests that the Court certify this Order and its previous
Orders dismissing claims and/or parties as final, appealable Orders pursuant to
Rule 54(b), and to delay the trial in this action as a result. Having considered the
submissions of the parties and the relevant law, the Court is of the opinion that the
Motion should be denied, and that trial should proceed as scheduled.
1
The facts underlying this action are set forth in the Court’s [119] Order and
are incorporated by reference herein.
DISCUSSION
A Rule 59 motion “calls into question the correctness of a judgment.” Templet
v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (citation and quotation marks
omitted). The Fifth Circuit has repeatedly “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.” See id. at 478-79. “Reconsideration of
a judgment after its entry is an extraordinary remedy that should be used sparingly.”
Id. at 479. Munn must establish (1) an intervening change in controlling law; (2) the
availability of new evidence not previously available; or (3) the need to correct a clear
error of law or prevent manifest injustice.2 See In re Benjamin Moore & Co., 318 F.3d
626, 629 (5th Cir. 2002). Munn moves for relief with respect to the third prong only.
Furthermore, Rule 54(b) provides that “the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.” Whether to certify an
order as final under Rule 54(b) is discretionary with the district court and is reviewed
for abuse of discretion only. See PYCA Indus., Inc. v. Harrison Cnty. Waste Water
Mgmt. Dist., 81 F.3d 1412, 1421 (5th Cir. 1996). “One of the primary policies behind
requiring justification for a Rule 54(b) certification is to avoid piecemeal appeals.” Id.
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“[A]ny order . . . that adjudicates fewer than all claims . . . may be revised at
any time before the entry of a judgment adjudicating all the claims . . . .” Fed. R.
Civ. P. 54(b). Rule 59(e), which Munn claims governs this Motion, generally applies
to reconsideration of a final judgment. Regardless of the standard used, the Court
finds reconsideration to be unfounded.
2
Accordingly, “a district court should grant certification only when there exists some
danger of hardship or injustice through delay which would be alleviated by immediate
appeal; it should not be entered routinely as a courtesy to counsel.” See id.
Munn’s Request for Reconsideration
Initially, Munn takes issue with the Court’s res judicata ruling entered over a
year ago, on March 27, 2015.
The Court already rejected Munn’s request for
reconsideration of that ruling on April 27, 2015. (See Order, ECF No. 34). To the
extent Munn’s argument is that the Court should have considered depositions from a
previous action in ruling on summary judgment, the Court did, in fact, consider those
depositions and still concluded that the City should be dismissed. (See, e.g., Order 6,
15-17, ECF No. 119).
The Court has thoroughly reviewed Munn’s Motion and supporting arguments
and finds that there is no need to correct a clear error of law or prevent manifest
injustice. Munn agrees with the Court’s summary judgment statement that the issue
before the Court is not the noise ordinance itself. (See Pl. Mem. 9, ECF No. 121 ).
However, he nonetheless argues that the Court should have denied summary judgment
because the City should have had more training on the noise ordinance. He contends
that the prior action related to the noise ordinance was sufficient notice to the City
that training on the ordinance was necessary.
Munn’s arguments are simply re-hashing of arguments or arguments that could
have been made before summary judgment. See Templet, 367 F.3d at 478-79. In any
event, the Court’s task was to examine the actions of Defendants Pearson and Grimes
3
when they arrived at The Purple Pelican regardless of whether they ordered that music
be turned down or if a citation was issued or an arrest made pursuant to the noise
ordinance. Munn’s claim arose when he was allegedly mistreated after the officers
arrived, and would have arisen whether the officers were responding to a noise
complaint or to a complaint unrelated to any potential noise ordinance violation. In
other words, the constitutional violations before the Court on summary judgment were
Pearson’s alleged use of excessive force and Grimes’ failure to intervene in connection
therewith and whether or not the City could be held liable for failure to train in
connection with the same. (See also Pl. Mem. 5, ECF No. 121) (Munn acknowledges
that “[t]he case at bar . . . involves a claim of ‘excessive force’ by an officer . . . .”). Thus,
the Court’s inquiry on training focused specifically on use of force, and not more
generally on the noise ordinance.3
As already determined by the Court, even accepting that there was no training
on the noise ordinance (Munn’s reason for submitting the prior depositions which the
Court took into account), Munn has never shown or otherwise created a genuine issue
of material fact that the training received by either officer on the use of force was
inadequate. See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(discussing non-movant’s summary judgment burden). And, again, Munn cannot
overcome his admission that he has no evidence regarding any prior allegations of
3
Munn has no constitutional claim vis-a-vis the noise ordinance because
there is no dispute that he never complied with any request to turn music down,
and there was no citation issued or arrest made.
4
probing by Pearson or any other City police officer. See Connick v. Thompson, 563 U.S.
51, 62 (2011).
Finally, Munn also discusses “rebuttal” evidence of a pattern of conduct related
to enforcement of the noise ordinance that he intends to introduce at trial to show that
the City is liable. Once the City met its summary judgment burden of showing that
there was no genuine dispute as to any material fact, however, Munn was required to
submit actual evidence of contradictory facts. See, e.g., Little, 37 F.3d at 1075. He did
not do so, but offered only conclusory allegations. See, e.g., id. at 1075-76. But even
accepting Munn’s conclusory arguments related to such evidence, the Court again
concludes that the “proffered evidence of pattern requires an excessively high level of
generality, as it consists of a handful of tangentially related incidents, some of which
do not even involve” the officers in this action. See Roberts v. City of Shreveport, 397
F.3d 287, 295 (5th Cir. 2005).
Munn’s Request for Certification
Munn argues that after trial, he will appeal the Court’s prior decisions
regardless. (See Pl. Mem. 15, ECF No. 121). This is not a valid reason for the Court
to certify its previous Orders as final and appealable, and Munn offers no authority to
the contrary.
Additionally, the Court is of the opinion that there is no danger of hardship or
injustice warranting immediate appeal or a stay of the trial in this action. See, e.g.,
Jasmin v. Dumas, 726 F.2d 242, 244 (5th Cir. 1984) (Rule 54(b) certification is “not to
be granted routinely. The procedure should be sparingly and deliberately used for it
5
brings parts of a case before the court seriatim.”). The trial itself may negate the need
for an appeal; if the jury finds in favor of Grimes and Pearson, there would be no claim
against the City regardless of whether it was prematurely dismissed. See Hale v.
Bexar Cty., 342 F. App’x 921, 925 (5th Cir. 2009) (“A municipality cannot be held liable
under § 1983 if there is no underlying constitutional violation.”).
CONCLUSION
The Court is of the opinion that there is no basis for reconsidering its
previous Orders or for certifying any such Orders as final.
IT IS THEREFORE ORDERED AND ADJUDGED that the [120] Motion
for Reconsideration filed by Plaintiff Stephen Munn is DENIED. This action
remains set for trial in November 2016 on the claims against Defendants Pearson
and Grimes.
SO ORDERED AND ADJUDGED this the 15th day of June, 2016.
s/
Louis Guirola, Jr.
LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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