Liner v. Pearson

Filing 12

ORDER denying 10 Motion for Reconsideration which will be construed as a Motion for Relief pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Signed by Honorable David C. Bramlette, III on 4/11/11 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HOWARD EUGENE LINER
VERSUS

PETITIONER
CIVIL ACTION NO. 5:11-cv-11-DCB-RHW

BRUCE PEARSON

RESPONDENT
ORDER

This matter is before the Court on petitioner's "Motion to Reconsider 2241" [10]. A Final
Judgment [6] dismissing the instant civil § 2241 habeas action pursuant to the Memorandum
Order and Opinion [5] was entered on March 3, 2011. Even though a “motion for
reconsideration” is not explicitly recognized by the FEDERAL RULES OF CIVIL PROCEDURE, a
litigant’s request for such relief is evaluated as a motion “to alter or amend judgment” under Rule
59(e) or as motion for “relief from judgment” under Rule 60(b). See Rogers v. KBR Technical
Services, Inc., 2008 WL 2337184, *5 (5th Cir. June 9, 2008)(citing Lavespere v. Niagara Mach.
& Tool Works, 910 F.2d 167, 173 (5th Cir.1990), abrogated on other grounds). Having reviewed
the motion [10] as well as the record, this Court finds that this motion [10] will be construed as
one filed pursuant to Rule 59(e) since it was filed within 28 days of the judgment and as
discussed below, this Court finds that the motion [10] is not well taken and will be denied.
In order to obtain relief, petitioner “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.” Rosenzweig v. Azurix Corp.,
332 F.3d 854, 863 (5th Cir.2003)(citation omitted). The United States Court of Appeals for the
Fifth Circuit has stated that when deciding a motion filed pursuant to Rule 59(e) of the FEDERAL
RULES OF CIVIL PROCEDURE, a district court should consider the following non-inclusive factors:

(1) the reasons for petitioner’s default; (2) the importance of the evidence to petitioner’s case;
(3) whether the evidence was available to petitioner before they responded to the underlying
motion; and (4) the likelihood that respondents will suffer unfair prejudice if the case is
reopened. See Sturges v. Moore, 73 Fed.Appx. 777, 778, 2003 WL 22100834, at *1 (5th Cir.
Sept. 11, 2003)(citing Ford v. Elsbury, 32 F.3d 931, 937-38 (5th Cir. 1994). Litigants
considering a Rule 59(e) motion have been "strongly cautioned" to carefully consider the grounds
for such a motion. Atkins v. Marathon LeTorneau Co., 130 F.R.D. 625, 626 n.1 (S.D. Miss.
1990). "Whatever may be the purpose of Rule 59(e), it should not be supposed that it is intended
to give an unhappy litigant one additional chance to sway the judge." Id.
Petitioner argues in his motion [10] that this Court failed to "answer" any of the 12 claims
set forth in the petition. See Mot. [10] at 1. However, after considering the arguments presented
in the motion [10] as well as the basis of the decision set forth in the Memorandum Order and
Opinion [5], this Court finds that petitioner has not offered any evidence or arguments that
establishes that this Court failed to make the correct legal finding in the Memorandum Opinion
and Order [5] entered on March 3, 2011. Furthermore, petitioner has failed to meet the requisite
legal standard for the Court to grant a motion pursuant to Rule 59(e) of the FEDERAL RULES OF
CIVIL PROCEDURE. Accordingly, it is,
ORDERED AND ADJUDGED that petitioner's motion [10] will be construed as a
Motion for Relief Pursuant to Rule 59(e) of the FEDERAL RULES OF CIVIL PROCEDURE.
IT IS FURTHER ORDERED AND ADJUDGED that the motion [10] is denied.
SO ORDERED AND ADJUDGED this the

11th

day of April, 2011.

s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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