Cameron v. Werner Enterprises, Inc. et al
Filing
193
ORDER denying Plaintiff Abigail Cameron's 183 Motion to Alter or Amend Pursuant to F.R.C.P. 59(e), etc. Signed by District Judge Keith Starrett on February 18, 2016 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
ANGELA CAMERON, AS THE
ADMINISTRATRIX OF THE ESTATE OF
ANTHONY CAMERON, DECEASED, FOR
AND ON BEHALF OF HERSELF, AND ON
BEHALF OF ALL OTHER PARTIES ENTITLED
TO RECOVER FOR THE WRONGFUL DEATH
OF ANTHONY CAMERON and
ABIGAIL CAMERON
v.
PLAINTIFFS
CIVIL ACTION NO. 2:13-CV-243-KS-JCG
WERNER ENTERPRISES, INC, A
FOREIGN CORPORATION, and
TERRY J. GUILLORY, AN INDIVIDUAL
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Abigail Cameron’s Motion to Alter or Amend
Pursuant to F.R.C.P. 59(e) or, in the Alternative, for Certification of an Interlocutory Appeal
(“Motion for Reconsideration”) [183]. After considering the submissions of the parties, the record,
and the applicable law, the Court finds that this motion is not well taken and should be denied.
I. BACKGROUND
This wrongful death action arises out of a commercial vehicle accident that occurred on
December 3, 2012, in Perry County, Mississippi. The decedent, Anthony Cameron (“Cameron”),
was the driver of one of the vehicles involved in the accident. Terry Guillory (“Guillory”) was the
driver of the other vehicle. Cameron was driving his tractor-trailer east on U.S. Highway 98, when
it collided with Guillory’s tractor-trailer. Guillory was attempting to cross the eastbound lanes of
the highway in order to turn left onto the westbound lanes at the time of the collision. Cameron was
killed in the accident. Guillory was acting within the course and scope of his employment with
Werner Enterprises, Inc. (“Werner”), at the time of the incident.
On November 1, 2013, Angela Cameron (“Angela”) filed suit against Werner and Guillory
(collectively “Defendants”) in this Court as the Administratrix of the Estate of Anthony Cameron
(the “Estate”), on behalf of herself, and on behalf of all other parties entitled to recover for the
wrongful death of Anthony Cameron. (See Complaint [1].) Angela was Cameron’s wife at the time
of his death. Abigail Cameron (“Abigail”) is the daughter of the decedent and retained her own
counsel in this case on January 22, 2014, after terminating her attorney-client relationship with Oby
Rogers (“Rogers”), attorney for Angela and the Estate. Subject matter jurisdiction is asserted on the
basis of diversity of citizenship pursuant to 28 U.S.C. § 1332.
Defendants sent an offer of settlement to Angela on April 7, 2015. (Settlement Offer [1691].) The offer’s terms included a high-low agreement that set Angela’s maximum recovery at trial
as $350,000 and her minimum recovery as $349,000. (Id. at p. 1.) The terms of the agreement
explicitly had no effect on Abigail’s claims, either brought on her own or through Angela as the
administratrix of the Estate. (Id. at p. 2.) Rogers accepted this agreement on Angela’s behalf by
phone call after receiving the offer. (Rogers Affidavit [169-1] at ¶ 5.)
Upon learning of this agreement, Abigail brought motions to disqualify Rogers, to enforce
the settlement, and for a declaratory judgment stating that she was entitled to half of the settlement
proceeds. On December 9, 2015, the Court issued an Order [182] denying all three of Abigail’s
motions. She now brings the current motion asking for reconsideration of this Order [182] or for
the Court to certify an interlocutory appeal.
II. DISCUSSION
A.
Reconsideration
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“A motion asking the court to reconsider a prior ruling is evaluated . . . as a motion . . . under
Rule 59(e) . . . [when] filed within twenty-eight days after the entry of judgment . . . .” Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012). Abigail’s Motion for Reconsideration
[183] was filed within this twenty-eight day period.
“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). There are three grounds for altering or
amending a judgment under Rule 59(e): “(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.” Williamson Pounders Architects, P.C., 681 F. Supp. 2d 766, 767
(N.D. Miss. 2008). Rule 59(e) motions are “not the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of judgment,” Templet,
367 F.3d at 478, and they “should not be used to . . . re-urge matters that have already been advanced
by a party.” Nationalist Movement v. Town of Jena, 321 F.App’x 359, 364 (5th Cir. 2009).
Reconsideration of a previous order is “an extraordinary remedy that should be used sparingly.” Id.
Before filing a Rule 59(e) motion, parties “should evaluate whether what may seem to be a clear
error of law is in fact simply a point of disagreement” with the Court. Atkins v. Marathon
LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990).
At the onset of the Court’s analysis, it must be noted that all of Abigail’s arguments in her
motion were either brought or should have been previously, and the ones brought were rejected by
the Court. Nevertheless, she persists in her motion, calling the Court’s previous Order [182] a
manifest error of law. However, “[a] party seeking reconsideration must show more than
disagreement with the court’s decision and recapitulation of the same cases and arguments already
considered by the court.” Lashley v. Pfizer, Inc., 877 F.Supp.2d 466, 478 (S.D. Miss. 2012)
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(citations and internal quotations omitted). Abigail fails to offer more than this, though, with respect
to either the alleged settlement agreement or the disqualification of Oby Rogers as Angela’s
attorney.
1.
The Agreement Between Angela and Defendants
The agreement between Angela and Defendants is a high-low agreement setting Angela’s
maximum recovery at trial at $350,000 and her minimum recovery at $349,000. No claim is settled
as a result of this agreement. Abigail seems to simultaneously argue both that this agreement is
suspect because of the small range between these two amounts and that she should receive an equal
share of the “settlement.”
The Court agrees that the small difference between the high and low of the agreement is
troublesome and has already warned Angela and her attorney that she still has a fiduciary duty to
diligently pursue the claims of the Estate and Abigail. However, as Abigail has never challenged
the agreement, the Court will not consider any argument challenging it now on a motion for
reconsideration.
As to her contention that Mississippi law entitles her to an equal share of the settlement of
Angela’s claim, the Court finds Abigail’s reading of the law flawed. First, the Court will emphasize
again that no claims have been settled in this case. Furthermore, the statute Abigail claims is
rendered “meaningless” by the Court’s previous Order [182] only gives her an equal share in the
“damages for the injury and death” of Cameron. MISS. CODE ANN. § 11-7-13. Recovery for these
damages goes to the Estate, and this recovery is in no way impacted by the agreement between
Angela and Defendants. The full measure of damages for Cameron’s injury and death is still
available to the Estate, and Abigail is entitled to a half of whatever amount the jury awards for these
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damages. The Court’s holdings in its previous Order [182] are therefore correct, and Abigail’s
Motion for Reconsideration [183] will be denied with respect to this argument.
2.
Disqualification of Oby Rogers
Abigail contends that the Court applied the incorrect law with respect to the disqualification
of Oby Rogers as Angela and the Estate’s attorney. She argues that she need only prove that there
was a prior attorney-client relationship between her and Rogers and that there is a substantial
relationship between the subject matter of the current and former representations. She relies
predominantly on the decision in Owens v. First Family Financial Services, Inc., 379 F.Supp.2d 840
(S.D. Miss. 2005), for this proposition. What Owens says, though, is that these two elements are
sufficient to “disqualify opposing counsel on the ground of a former representation.” 379 F.Supp.2d
at 847 (quoting In re American Airlines, Inc., 972 F.2d 605, 614 (5th Cir. 1992)) (emphasis added).
Rogers, though, is not counsel for the opposing side. Abigail is essentially asking the Court to
disregard the clear language of Mississippi Rule of Professional Conduct 1.9, which explicitly
requires the representation to be materially adverse to the interests of the former client before an
attorney is disqualified. The Court cannot do so and therefore finds no “manifest error” in its
previous Order [182]. Therefore, Abigail’s Motion for Reconsideration [183] will be denied as to
Oby Rogers’ disqualification.
B.
Interlocutory Appeal
A district judge may make an interlocutory order appealable when he is of the opinion “that
such order involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation.” 28 U.S.C. § 1292(b). This Court has previously held that “a
controlling question of law” means “an abstract legal issue” and not “the application of settled law
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to fact.” McLaurin v. United States, No. 2:06-CV-169-KS-MTP, 2008 WL 782487, at *2 (S.D.
Miss. Mar. 24, 2008) (internal citations and quotations omitted). All of the questions of law Abigail
purports to raise on appeal involve the application of settled law to the facts of this case.
Furthermore, the six questions she specifically enumerates for appeal all go towards the legality of
the agreement or Angela and Rogers’ standing at trial now that they are no longer representatives
of the Estate.1 Abigail addressed none of these questions in her previous motions, and the Court
issued no ruling as to these questions in its previous Order [182]. Therefore, because Abigail has
identified no controlling question of law she can bring on appeal, the Court will not certify an
interlocutory appeal and her Motion for Reconsideration [183] will be denied.
III. CONCLUSION
IT IS THEREFORE ORDERED AND ADJUDGED that Abigail’s Motion for
Reconsideration [183] is denied.
SO ORDERED AND ADJUDGED this the 18th day of February, 2016.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
1
Abigail points to nothing in the record indicates that Angela is no longer the administratrix
of the Estate. Regardless, this was not an issue addressed in the previous motions for which the
Court issued the disputed Order [182] and can therefore not be a question that is appealed.
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