Thompson v. Anderson et al

Filing 28

ORDER denying 27 Motion for Hearing; granting 22 Motion for Reconsideration; denying 24 Motion to Strike for the reasons set out in the Order. Signed by District Judge Daniel P. Jordan III on June 16, 2017. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
LATOYA REDD THOMPSON

PLAINTIFF

v.

CIVIL ACTION NO. 3:16cv726-DPJ-FKB

CLEVELAND ANDERSON, et al.

DEFENDANTS
ORDER

This § 1983 case is before the Court on three pending motions: Plaintiff Latoya Redd
Thompson’s Motion for Reconsideration [22] and her Motion for Hearing [27], and Defendants’
Motion to Strike [24]. For the reasons that follow, the motion for reconsideration is granted, and
the motion to strike and motion for hearing are denied.
I.

Facts and Procedural History
As recounted in the prior Order [19] of the Court, Plaintiff Latoya Redd Thompson filed

this lawsuit against Canton Municipal Utilities (“CMU”) and three of its commissioners after she
was terminated from her position as a staff attorney without notice and a hearing. The
Complaint alleged no other wrongdoing. Along with her Complaint, Thompson filed a motion
for a preliminary injunction seeking reinstatement to her staff-attorney position. But the next
day, the parties agreed that Thompson would be “reinstated to the position of CMU Staff
Attorney with all prior rights, responsibilities and benefits.” Agreed Order [5]. The agreement
mooted the then-pending motion for preliminary injunctive relief. Id.
Once Thompson was reinstated, Defendants moved to dismiss the remaining claims,
arguing that they were moot. The Court agreed as to the claim for an injunction preventing
further deprivation of her rights, but denied the motion regarding the claim for declaratory relief.
Order [19] at 5–6. In particular, the Court noted that, since Thompson’s return to CMU, the

CMU handbook was amended to make clear that CMU employees are entitled to notice and a
hearing prior to termination. Id. The Court concluded that “[u]nder these circumstances,
Thompson’s claim that she may again be subjected to termination without notice and a hearing in
violation of her constitutional rights is ‘too speculative to avoid mooting the case.’” Id. at 6
(quoting Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), aff’d sub nom.
Sossamon v. Texas, 563 U.S. 277 (2011)).
On May 12, 2017, Thompson filed her motion for reconsideration, asking the Court to
reinstate her claim for injunctive relief. Defendants responded with a motion to strike
Thompson’s motion. Finally, Thompson filed a motion asking the Court to “set a hearing to
allow Plaintiff to call witnesses and present evidence in support of her motion for injunctive and
declaratory relief.” Mot. [27] at 1. The Court is prepared to rule on all three pending motions.
II.

Analysis
A.

Motion for Reconsideration

In her motion for reconsideration, Thompson complains about issues that are not directly
related to the injunctive-relief claim she asks the Court to reinstate. It is therefore important to
specify the claims Thompson originally asserted. In her Complaint, the only wrongful act
Thompson mentioned was the termination of her employment without notice and a hearing. See
Compl. [1] at 3–4. Consistent with her factual averments, Thompson sought:
A.
A declaration that [Defendants] violated her rights guaranteed by
the Fourteenth Amendment to the U.S. Constitution when they terminated her
without proper notice and a hearing;
B.
A declaration that Latoya Redd Thompson shall be reinstated to
her position as staff attorney[;]
C.
A temporary restraining order and a preliminary injunction
enjoining defendants from interfering with Latoya Redd Thompson’s
constitutional rights when she returns to her position as staff attorney[;]
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D.
An award to Plaintiff of attorneys’ fees and costs pursuant to 42
U.S.C. § 1988; and
E.
appropriate.

and [sic] such other and further [relief] as this Court deems

Id. at 4–5. The case thus sought redress from an alleged procedural-due-process violation related
to the termination of employment without notice and a hearing. While Thompson generally
sought an injunction against violation of her “constitutional rights” upon reinstatement, that
prayer must be read in the context of the rest of the Complaint, which focuses solely and
exclusively on the procedural-due-process violation she claims she suffered. Id. at 5. So as
pleaded, the claim for injunctive relief would preclude Defendants from again terminating
Thompson’s employment without notice and a hearing.
With that framing of the issues in mind, the Court turns to Thompson’s motion for
reconsideration, in which she asks the Court to reinstate her claim for injunctive relief. In her
motion, which she characterizes as brought under Federal Rule of Civil Procedure 60(b)(2) and
(6), Thompson makes three main arguments. First, she contends that Defendants have not
complied with the Agreed Order [5] insofar as Thompson was not accorded “all prior rights,
responsibilities and benefits” of her employment upon her reinstatement. Second, and somewhat
related to the first argument, Thompson says she has been treated unfairly since her return in an
effort to “punish Plaintiff for her lawsuit.” Pl.’s Mot. [22] at 8. Finally, Thompson contends that
the changes to CMU policy upon which the Court relied in dismissing her claim for injunctive
relief “were merely posturing for litigation.” Id. at 5.
Starting with the alleged conduct after her return, Thompson has not shown that these
new issues relate to the procedural-due-process issue she is seeking to revive in her motion for
reconsideration—i.e., an injunction requiring pre-termination notice and a hearing. And a
motion for reconsideration is not the proper vehicle to contest Defendants’ compliance with a
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separate order of the Court. If Thompson wishes to pursue these issues, she should either move
to enforce the order or move to amend her complaint.1 But the new allegations do not resuscitate
an otherwise moot procedural-due-process claim.
Thompson’s third argument relates to the dismissed claim. In its Order, the Court
concluded that Defendants’ actions subsequent to Thompson’s reinstatement “ma[d]e it
‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
recur.’” Stauffer v. Gearhart, 741 F.3d 574, 582 (5th Cir. 2014) (quoting Sossamon, 560 F.3d at
325). In particular, the Court noted that Defendants had “submitted evidence that, since her
reinstatement, Thompson has been instrumental in drafting amendments to the CMU handbook
that make clear that CMU employees are entitled to notice and a hearing prior to termination.”
Order [19] at 5–6. Following Fifth Circuit precedent that accords government actors “a
presumption of good faith,” the Court concluded that Thompson had not shown that the policy
changes were “mere litigation posturing.” Sossamon, 560 F.3d at 325.
Thompson has now come forward with evidence to overcome the good-faith
presumption. Specifically, Thompson says that she was not permitted to assist in rewriting the
CMU handbook; not all references to CMU employment being “at will” were removed from the
handbook; an amended handbook reflecting the changes Defendants made has not been
disseminated to staff; and CMU terminated another employee without notice and a hearing in
January 2017. Thompson says that this new evidence, which she did not discover until after the
Court ruled, requires reconsideration of the partial dismissal order.

1

Under the Case Management Order [23], motions for amended pleadings are due to be
filed on or before June 16, 2017.
4

As stated, Thompson frames her motion as brought under Rule 60(b)(2) and (6). But
“Rule 60(b) is limited to relief from a ‘final’ judgment or order.” McKay v. Novartis Pharm.
Corp., 751 F.3d 694, 701 (5th Cir. 2014) (quoting Zimzores v. Veterans Admin., 778 F.2d 264,
266 (5th Cir. 1985)). “‘Interlocutory orders,’ such as grants of partial [dismissal], ‘are not within
the provisions of [Rule] 60(b), but are left within the plenary power of the court that rendered
them to afford such relief from them as justice requires.’” Id. (quoting Zimzores, 778 F.2d at
266). Such interlocutory orders “may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).
Whether to grant such relief is a matter left to the trial court’s discretion. See McKay, 751 F.3d
at 701; see also Fed. R. Civ. P. 60(b) (advisory committee’s note) (stating that “interlocutory
judgments are not brought within the restrictions of [Rule 60], but rather they are left subject to
the complete power of the court rendering them to afford such relief from them as justice
requires”).2
With that standard in mind, on this record, the Court exercises discretion to grant
Thompson’s motion. The evidence upon which the Court relied in granting Defendants’ motion
to dismiss was submitted with their reply, so Thompson had no meaningful opportunity to

2

Defendants correctly cite cases from this district holding that motions for
reconsideration filed within 28 days are decided under Rule 59(e); motions filed later are decided
under Rule 60(b). See Defs.’ Mem. [25] at 2. While that standard is certainly true for final
judgments, some cases have applied it to interlocutory orders. Regardless, the Fifth Circuit has
made it clear in recent years that Rule 54(b) applies to interlocutory orders whereas Rules 59(e)
and 60(b) apply to final judgments. See McKay, 751 F.3d at 701; see also Cabral v. Brennan,
853 F.3d 763, 766 (5th Cir. 2017) (holding that “[b]ecause the order granting partial summary
judgment was interlocutory, the court should have analyzed the motion for reconsideration under
Rule 54(b) instead of Rule 59(e), which applies to final judgments”); Namer v. Scottsdale Ins.
Co., 314 F.R.D. 392, 393–95 (E.D. La. 2016) (examining issue and holding that Rule 54(b)—not
Rules 59(e) or 60(b)—applies to interlocutory orders). The Court agrees that applying Rule
54(b) in this context is more consistent with the plain language of Rules 54(b), 59(e), and 60(b),
as well as the commentary to Rule 60(b).
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respond. Now that she has, it is no longer clear that CMU actually changed its policies and
practices to ensure that employees will receive pre-termination notice and a hearing. The Court
therefore concludes that Thompson’s claim for injunctive relief should not be dismissed at this
stage. Thompson’s motion for reconsideration is therefore granted.3
B.

Motion to Strike

Defendants have asked the Court to strike Thompson’s motion. They contend that
Thompson should have filed the motion under Rule 59(e). And because Thompson filed it more
than 28 days after the Order of partial dismissal, Defendants say that her motion is untimely. But
as the Court explained above, motions for reconsideration of interlocutory orders are considered
under Rule 54(b). And such orders “may be revised at any time before the entry of a judgment
adjudicating all the claims.” Fed. R. Civ. P. 54(b); see also Mitchell v. Amica Mut. Ins. Co., No.
14-2766, 2015 WL 9488457, at *4 (E.D. La. Dec. 30, 2015) (“Although Rules 59 and 60 set
forth specific time frames during which reconsideration may be sought, Rule 54 sets forth no
such limitation.”). The motion to strike is therefore denied.
C.

Motion for Hearing

Finally, Thompson asks that the Court set a hearing on “her motion for injunctive and
declaratory relief.” Mot. [27]. No such motion is now pending. While Thompson originally
sought a preliminary injunction reinstating her to her position with CMU, that motion was
rendered moot by the Agreed Order [5]. If Thompson seeks further preliminary injunctive relief,
she must file another motion. Thompson’s motion for hearing is denied.

3

It is worth noting that this case is still proceeding on other claims, so there is little
prejudice in developing a complete record on the injunctive-relief claim before a final decision is
made.
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III.

Conclusion
The Court has considered all arguments. Those not specifically addressed would not

have changed the outcome. For the foregoing reasons, Plaintiff’s Motion for Reconsideration
[22] is granted; her Motion for Hearing [27] and Defendants’ Motion to Strike [24] are denied.
SO ORDERED AND ADJUDGED this the 16th day of June, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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