Turnage et al v. Messersmith Manufacturing, Inc. et al

Filing 46

ORDER denying 41 Motion for Reconsideration. Signed by District Judge Keith Starrett on 4/14/2016 (scp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JONATHAN DAVIS TURNAGE, et al.
V.

PLAINTIFFS

CIVIL ACTION NO. 2:14-CV-124-KS-MTP

MCCONNELL SALES AND ENGINEERNING
CORPORATION, INC., et al.

DEFENDANTS

ORDER
For the reasons provided below, the Court denies Plaintiffs’ Motion for
Reconsideration [41].
I. BACKGROUND
This is a product liability case. On January 14, 2015, the Court granted [20] the
original defendant’s Motion to Dismiss [4] for lack of personal jurisdiction, and it
granted Plaintiffs’ Motion for Leave to File [11] an Amended Complaint. About two
weeks later, Plaintiffs filed an Amended Complaint [21] naming McConnell Sales and
Engineering Corporation, Inc. and John Does as defendants. A summons was then
issued [23] and served [24] on April 30, 2015.
Months passed, and nothing happened in the case. No defendant answered the
complaint, and Plaintiffs did not seek a default judgment. The Court eventually
entered two Orders to Show Cause [25, 26] why the case should not be dismissed for
failure to prosecute. Plaintiffs eventually responded [28], claiming that they had
experienced “difficulty in finding the correct name of the John Doe defendants” and
sought leave to amend once again and identify “John Doe B” as the proper defendant,
McConnell Technologies, Inc. The Court construed the response as a motion to amend

and granted it [29]. Plaintiff subsequently filed their Second Amended Complaint [30],
which named McConnell Sales and Engineering Corporation, Inc., McConnell
Technologies, Inc., and John Does as Defendants.
On November 17, 2015, Defendant McConnell Technologies, Inc. filed a Motion
to Dismiss [34] pursuant to Rule 12(b)(6). Defendant argued that Plaintiffs’ claims
were barred by the applicable statute of limitations, and that the claims asserted
against it in the Second Amended Complaint did not relate back to the filing of the
original complaint because Plaintiffs failed to conduct a reasonably diligent inquiry to
discover the proper Defendant.
On February 9, 2016, the Court granted Defendant’s motion [40] and dismissed
Plaintiffs’ claims against it. The Court ruled that Plaintiffs’ claims against Defendant
did not relate back under Rule 15(c)(1)(C)(i) because the Fifth Circuit has ruled “that,
for a ‘John Doe’ defendant, there [is] no ‘mistake’ in identifying the correct defendant;
rather, the problem was not being able to identify that defendant.” Jacobsen v.
Osborne, 133 F.3d 315, 320-21 (5th Cir. 1998). The Court also ruled that Plaintiffs’
claims did not relate back under Rule 15(c)(1)(A) because Plaintiffs had not exercised
reasonable diligence in determining Defendant’s identity.
Plaintiffs filed a Motion [41] for the Court to reconsider its ruling on Defendant’s
motion to dismiss pursuant to Rule 59(e), which is now ripe for review.
II. 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
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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). Plaintiff’s
Motion for Reconsideration [41] was filed within twenty-eight days of the Court’s
Memorandum Opinion and Order [40] of March 8, 2016, 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). 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). It 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).

III. DISCUSSION
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First, Plaintiffs argue that the Court inappropriately considered evidence
outside the pleadings in determining that they did not use reasonable diligence to
identify the proper Defendant. However, neither party presented the Court with any
matters outside the pleadings. Therefore, the Court did consider any evidence, nor
could it have done so.
Plaintiffs also argue that the Court wholly relied on Defendant’s conclusory
statement that they did not use reasonable diligence to identify the proper Defendant.
This assertion is false. The Court based its decision on the record and Plaintiffs’ own
representations in briefing.
Plaintiffs filed this case in August 2014, but they apparently did not know who
they actually needed to sue until August 2015. In fact, they only sought leave to add
McConnell Technologies, Inc. in response to two orders to show cause why their case
should not be dismissed for failure to prosecute. According to Plaintiffs’ response to
Defendant’s motion to dismiss, they discovered the identity of the proper Defendant
after simply asking Plaintiff Jonathan Turnage’s employer who serviced the equipment
after the accident. This route of investigation could – and should – have been pursued
before filing suit, and Plaintiffs have offered no explanation for why they waited until
over a year later to do so. Therefore, the Court did not err in finding that Plaintiffs
failed to exercise reasonable diligence in identifying the proper Defendant. Cf. Pipe
Freezing Servs. v. Air Liquide Am., LP, 2009 U.S. Dist. LEXIS 81472, at *10 (S.D. Miss.
Aug. 20, 2009) (plaintiff had responsibility to identify defendants prior to filing suit
and was not entitled to a fishing expedition to correct its failure).
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Plaintiffs also argue that the Court should have converted the Rule 12(b)(6)
motion to a Rule 56 motion pursuant to Rule 12(d) and permitted them an opportunity
to present evidence. However, Defendant presented no matters outside the pleadings
in support of its motion. Therefore, Rule 12(d) is inapplicable.
Finally, the Court notes that Plaintiffs could have raised these arguments in
response to Defendant’s motion, but they did not do so. 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, 321 F. App’x at 364.
IV. CONCLUSION
For these reasons, the Court denies Plaintiffs’ Motion [41] to reconsider its prior
ruling.
SO ORDERED AND ADJUDGED, on this, the 16th day of April, 2016.

s/ Keith Starrett
UNITED STATES DISTRICT JUDGE

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