Kennedy v. Jefferson County, Mississippi et al

Filing 382

ORDER denying 378 Motion for Reconsideration Signed by Honorable David C. Bramlette, III on 11/2/2016 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JERRY L. KENNEDY

PLAINTIFF

VS.

CIVIL ACTION NO: 5:13-cv-226(DCB)(MTP)

JEFFERSON COUNTY HOSPITAL

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on the plaintiff Jerry L.
Kennedy (“Kennedy”)’s Motion to Alter or Amend Judgment Based on
Intervening Change in Controlling Law (docket entry 378).

Having

carefully considered the motion and response, the memoranda of the
parties and the applicable law, and being fully advised in the
premises the Court finds as follows:
On August 12, 2016, the Court granted summary judgment to
defendant Jefferson County Hospital on Kennedy’s breach of contract
claim.

See docket entry 375.

The Court relied on the Fifth

Circuit’s decision in Cox v. Desoto County, Mississippi, 564 F.3d
745 (5th Cir. 2009) in holding that the Mississippi Department of
Employment Security (“MDES”)’s finding that Kennedy was terminated
for insubordination barred Kennedy’s breach of contract claim.

In

addressing Kennedy’s argument that he should be allowed to argue
that the MDES proceedings were tainted by fraud, the Court quoted
the

Fifth

Circuit’s

holding

in

Cox

that

a

plaintiff

cannot

collaterally attack a MDES decision in federal court because the
proper avenue for such an attack is the Mississippi state court
system through direct appeal.

A Final Judgment was entered on

August 12, 2016, the same day as the Order granting summary
judgment.

See docket entry 376.

Kennedy’s present motion was filed on September 9, 2016.
Depending on the timing of the motion, the Fifth Circuit treats a
motion for reconsideration as either a motion to alter or amend
under Rule 59(e), or a motion for relief from judgment under Rule
60(b).

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d

167, 173 (5th Cir. 1990).

If the motion is filed within 28 days of

entry of the judgment, then the motion constitutes a motion to
alter or amend under Rule 59(e).

Id.; Fed.R.Civ.P. 59(e).

A

motion filed more than 28 days, but not more than one year, after
entry of judgment is governed by Rule 60(b).
Because

Kennedy’s

motion

was

filed

on

the

Fed.R.Civ.P. 60(b).
twenty-eighth

day

following entry of judgment, the Court shall treat it as a motion
to alter or amend under Rule 59(e).
A motion to alter or amend judgment pursuant to Federal Rule
of Civil Procedure 59(e) constitutes a request for “extraordinary”
relief. See In re Pequeno, 240 Fed. App’x 634, 636 (5th Cir. 2007).
Such relief is appropriate only in three circumstances: “(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.”
omitted).

Id. (citation

Courts have explained that the “intervening change in

controlling law” circumstance is not available when a subsequent

2

decision “does not cite, apply, or consider” the legal authorities
upon which the judgment is based. Sepehry-Fard v. Bank of New York
Mellon, N.A., 2014 WL 460895, *2 (N.D. Cal. 2014).

Litigants may

not utilize Rule 59(e) “for rehashing evidence, legal theories, or
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th

arguments ....”
Cir. 2004).

Kennedy’s motion is premised solely on the Mississippi Supreme
Court’s recent decision in Linde Health Care Staffing, Inc. v.
Claiborne County Hospital, ___ So.3d ___, 2016 WL 4245435 (Miss.
Aug.

11,

2016).

Kennedy

argues

that

Linde

constitutes

an

“intervening change in controlling law” that requires the Court to
reconsider its August 12, 2016 order granting summary judgment.
Underlying Kennedy’s motion is the question of what constitutes an
“intervening change in controlling law” for purposes of Rule 59(e).
Other

courts

examining

the

standard

have

explained

“that

‘controlling law’ under Rule 59(e) refers specifically to binding
precedent only.”

See, e.g., McNamara v. Royal Bank of Scotland

Group, PLC, 2013 WL 1942187, *3 (S.D. Cal. 2013).
The Linde decision is not binding precedent and has no legal
relationship to this case.
whether

two

state

trial

The issue presented in Linde was
courts

had

properly

set

aside

the

enrollment of foreign judgments under Mississippi Rule of Civil
Procedure 60(b).

Conversely, the issue presented in this Court’s

summary judgment order was whether a breach of employment agreement

3

claim was barred by the preclusive effect of a MDES decision.

One

decision cannot “control” the outcome of another decision for
purposes of Rule 59(e) where the issues presented are not the same.
See, e.g., United States v. Marion, 562 F.3d 1330, 1340 (11th Cir.
2009)(“We agree with the government that Pease does not control the
outcome here because it involved different issues than those
presently before us.”).
The Linde decision also has no factual relationship to this
The facts of Linde involved (1) a foreign judgment, (2) a

case.

party that was not a signatory to an arbitration agreement, and (3)
the Federal Arbitration Act.
involve

(1)

an

employment

Conversely, the facts of this case
agreement,

(2)

a

MDES

finding

“insubordination,” and (3) the doctrine of res judicata.

of
One

decision cannot “control” the outcome of another case for purposes
of Rule 59(e) where the facts presented are not the same.

See

Seaman v. C.S.P.H., Inc., 1997 WL 538751, *12 (N.D. Tex. Aug. 25,
1997)(“The Court is of the opinion that Soileau is factually
distinguishable and does not control the outcome in the case at
bar.”).
This

Court’s

summary

judgment

order

applied

the

Fifth

Circuit’s decision in Cox, and the Linde decision neither expressly
nor implicitly abrogates the Cox decision.

There is a “well

established [rule] that a district court sitting in diversity is
generally bound by the state law interpretations of its circuit

4

court.”
920,

925

Perez v. Brown & Williamson Tobacco Corp., 967 F.Supp.
(S.D.

Tex.

1997).

In

addition,

there

is

a

well

established rule that courts should “not read tea leaves to
predict” whether a new case casts doubt on a prior case.

United

States v. Guerrero, 768 F.3d 351, 361 (5th Cir. 2014).
In order to prevail on his motion, Kennedy would have to show
that Linde “has ‘unequivocally’ overruled [the Cox] precedent.”
See id. However, Kennedy cannot do so because both the factual and
legal issues presented by the two cases are entirely different.
Kennedy

has

not

demonstrated

that

he

qualifies

for

the

“extraordinary” relief of an alteration or amendment of this
Court’s Final Judgment.
Consequently, the Court finds no clear error of law, or any
other reason to alter or amend its previous judgment pursuant to
Rule 59(e).

The plaintiff’s motion is without merit and shall be

denied.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff Jerry L. Kennedy
(“Kennedy”)’s

Motion

to

Alter

or

Amend

Judgment

Based

on

Intervening Change in Controlling Law (docket entry 378) is DENIED.
SO ORDERED, this the 2nd day of November, 2016.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

5