First Service Bank v. World Aircraft, Inc. et al

Filing 64

ORDER denying 52 Motion for Reconsideration. Signed by District Judge Taylor B. McNeel on 3/5/2025. (KAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
FIRST SERVICE BANK
v.

PLAINTIFF
CIVIL ACTION NO. 1:24-cv-20-TBM-RPM

WORLD AIRCRAFT, INC. and
THOMAS SWAREK

DEFENDANTS
ORDER

This action arises out of a $50,000,000.00 Term Loan Credit Agreement that First Service
Bank entered into on September 17, 2020, and to which Swarek was a guarantor. In 2023, several
principal and interest payments for the Term Loan Credit Agreement became delinquent and past
due. On November 22, 2023, First Service Bank noti?ed Swarek that the total past amount owed
under the Term Loan Credit Agreement was $53,275,468.59, and that full payment was due
immediately pursuant to the acceleration clause within the Guaranty Agreement. [1-5], pg. 1. After
no payment was made, First Service Bank ?led this action on January 19, 2024, seeking judgment
against Swarek for failure of his payment obligations. The Court granted summary judgment in
favor of First Service Bank and entered a default judgment against Thomas Swarek on July 12,
2024.
Despite Swarek’s prior admissions that the Term Loan Agreement is an enforceable
contract, that he had a duty to pay First Service Bank pursuant to this contract, and that he is in
default on his payments to First Service Bank, Swarek has now ?led a Motion [52] seeking
reconsideration of the Court’s Order [45] granting summary judgment and entering a default
judgment against him. According to Swarek, new evidence has been discovered that proves he was
entitled to 18 months of forbearance and restructuring the principal of the loan. As a result, Swarek

asks the Court to set aside its Order [45] and reopen this case to consider the newly discovered
evidence. For the reasons discussed below, Swarek’s Motion [52] is denied.
I. STANDARD OF REVIEW
Swarek asks the Court to set aside its Order [45] under Rule 60(b) of the Federal Rules of
Civil Procedure. Rule 60(b), however, provides relief from a ?nal judgment resolving all claims
against all parties. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 353 (5th Cir. 1993).
The Court’s Order [45] granting First Service Bank’s Motion [38] for summary judgment,
however, resolved only First Service Bank’s claims against Swarek. See Rutter Group Practice
Guide: Federal Civil Procedure Before Trial, National Edition, § 14:370 (“In multi-party and multiclaim cases, the court may enter a ?nal judgment against some but not all parties if it certi?es under
Rule 54(b) that Ëthere is no just reason for delay.’”); Williams v. Seidenbach, 958 F.3d 341, 347 (5th
Cir. 2020) (“Entry of a partial ?nal judgment is proper under Rule 54(b)”). To be sure, in its Final
Judgment Against Thomas Swarek [47], the Court also administratively closed the case as to World
Aircraft, Inc., in light of its pending bankruptcy proceeding, and speci?cally held that “[n]othing
contained in this Order shall be considered a dismissal or disposition of this matter against World
Aircraft, Inc.” [47].
In sum, because First Service Bank sought summary judgment on all of its claims against
Swarek—but on none of its claims against World Aircraft, Inc.—First Service Bank’s Motion [38]
sought only partial summary judgment on the claims asserted in its Complaint. See e.g., Miller v.
Elexco Land Servs., Inc., No. 5:09-cv-38-GTS, 2011 WL 4499281, at *3 (N.D. N.Y. Sep. 27, 2011)
(granting motion for partial summary judgment on claims asserted against one defendant in a multidefendant action). As a result, the Court’s Order [45] granting First Service Bank’s Motion [38]

2

for summary judgment was interlocutory. Calpetco 1981 v. Marshall Expl., Inc., 989 F.2d 1408, 1414–
15 (5th Cir. 1993) (stating that “a partial summary judgment is interlocutory in nature”) (citation
omitted). The Court must therefore analyze Swarek’s Motion under Rule 54(b) rather than Rule
60(b). See Cabral v. Brennan, 853 F.3d 763, 766 (5th Cir. 2017) (“Because the order granting partial
summary judgment was interlocutory, the court should have analyzed the motion for
reconsideration under Rule 54(b) . . .”).
“District courts have considerable discretion in deciding whether to grant a motion to
reconsider an interlocutory order. The exact standard applicable to the granting of a motion under
Rule 54(b) is not clear, though it is typically held to be less exacting than would be a motion under
Rule 59(e), which is in turn less exacting than the standards enunciated in Rule 60(b).” Wiley v.
Dept. of Ener , No. 21-cv-933-DPC, 2021 WL 2291135, at *1 (E.D. La. Jun. 4, 2021) (citations
omitted). “Motions to reconsider, whether analyzed under Rule 54(b), Rule 59(e) or Rule 60(b),
Ëserve the narrow purpose of allowing a party to correct manifest errors of law or fact or to present
newly discovered evidence.’” Id. (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.
1989)). As a result, district courts “frequently apply the same standard to” “motions for
reconsideration under Rule 54(b) and to motions for reconsideration under Rule 59(e).” eTool Dev.,
Inc. v. Nat’l Semiconductor Corp., 881 F.Supp.2d 745, 748 (E.D. Tex. 2012) (collecting cases).
Under Fifth Circuit jurisprudence:
A Rule 59(e) motion Ëcalls into question the correctness of a judgment.’ This Court
has held that such a motion is not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been o?ered or raised before the entry of
judgment. Rather, Rule 59(e) Ëserve[s] the narrow purpose of allowing a party to
correct manifest errors of law or fact or to present newly discovered evidence.’
Reconsideration of a judgment after its entry is an extraordinary remedy that should
be used sparingly.

3

Templet v. HydroChem, Inc., 367 F.3d 473, 478–79 (5th Cir. 2004) (internal citations omitted). In
other words, “[a] motion to alter or amend the judgment under Rule 59(e) must clearly establish
either a manifest error of law or fact or must present newly discovered evidence and cannot be used
to raise arguments which could, and should, have been made before the judgment issued.” Schiller
v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003) (internal quotation marks omitted).
“Relief under Rule 59(e) is also appropriate when there has been an intervening change in the
controlling law.” Id. Additionally, “a trial court is free to reconsider and reverse interlocutory
orders for any reason it deems su?cient, even in the absence of new evidence or an intervening
change or in clari?cation of the new law.” Sto?els ex rel. SBC Tel. Concession Plan v. SBC Commc’ns,
Inc., 677 F.3d 720, 727-28 (5th Cir. 2012).
II. DISCUSSION AND ANALYSIS
In his Motion, Swarek asks this Court to consider “newly discovered evidence” that proves
he was entitled to 18 months of forbearance and a restructuring of the principal on the Term Loan
Agreement. [52], p. 2. The Fifth Circuit has held that “[a] motion to reconsider based on an alleged
discovery of new evidence should be granted only if (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 impeaching.” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 535 (5th Cir. 2015).
Since courts may address the factors in any order, this Court begins its analysis with the second
factor. See Ferraro, 796 F.3d at 535 (addressing factor two ?rst); see also Johnson v. Diversicare Afton
Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010) (same).

4

In support of his Motion, Swarek attached various exhibits totaling 229 pages—most of
which appear to be print outs from various websites, including: www.consumer?nance.gov;
www.federalreserve.gov; www.federalregister.gov; gao.gov; as well as screenshots from news
articles discussing COVID-19. According to Swarek, these documents were produced by “the
United States government . . . on behalf and in bene?t of all borrowers of federal back covid loans
during a national emergency.” [52], p. 2. He further asserts that the documents were “newly
discovered by defendant.” [52], p. 2. But Swarek does not argue, much less prove, that these
exhibits were unavailable to him at the summary judgment stage of these proceedings. And it is
well settled that a motion for reconsideration “is not the proper vehicle for rehashing evidence . . .
that could have been o?ered or raised before the entry of judgment.” Templet, 367 F.3d at 479; see
also Ferraro, 796 F.3d at 535. Thus, Swarek fails to carry his burden that reconsideration is
warranted.
To be sure, Swarek has also failed to demonstrate facts that “would probably change the
outcome.” Ferraro, 796 F.3d at 535. In his Motion, Swarek argues that MS Facilities “has promoted
their Main Street loans as not forgivable but extendable (forbearance) and the interest as . . . being
forgivable.” [52], p. 2. Swarek further asserts that “the loan guidance documents plus bank loan
documents comprise a contract . . . that includes options for loan extension (forbearance) as well as
options for forgiveness of interest.” [52], p. 2. But Swarek provides no support for his claims that
he was entitled to 18 months of forbearance and restructuring of the principal on the Term Loan
Agreement. Instead, Swarek relies on highlighted paragraphs and handwritten notes in the margins
of the 229 pages of exhibits to make his argument. It is not the duty of the court, however, to sift
through the record in search of evidence to support a party’s argument. Malacara v. Garber, 353

5

F.3d. 393, 405 (5th Cir. 2003). Because Swarek o?ers mere conclusory arguments for why
reconsideration is warranted, Swarek fails to meet his burden to show that consideration of these
exhibits “would probably change the outcome” of this action. 1 For these reasons, the Court
exercises its broad discretion and denies Swarek’s Motion [52].
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Thomas Swarek’s Motion [52]
is DENIED.
This, the 5th day of March, 2025.
______________________________
TAYLOR B. McNEEL
UNITED STATES DISTRICT JUDGE

Even if this Court was willing to reconsider its prior Order [45] for any reason at all, Swarek has provided no
reason—much less a su?cient reason—for which this Court should reconsider its decision. Sto?els ex rel. SBC Tel.
Concession Plan, 677 F.3d at 727-28.
1

6