Melcher v. Wiggins, Jr. et al

Filing 37

OPINION AND ORDER denying 27 Motion to Alter Judgment; denying as moot 36 Motion for Leave to Respond/Reply to Defednants' Sur-Reply; denying as moot 28 Motion for Leave to File Second Amended Complaint.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JOHN RAY MELCHER
VS.
MATTHEW DRAKE WIGGINS, JR.
and CITY OF KEMAH

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CIVIL ACTION NO. G-13-388

OPINION AND ORDER
Having given careful consideration to the Motions of Plaintiff, John Ray Melcher,
for relief pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, this
Court remains convinced that its earlier actions were correct.
Melcher’s Rule 59(e) Motion will be construed as a Motion to Vacate the Final
Judgment. Edward H. Brolin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir.
1993) (“Rule 59(e) has been interpreted as covering motions to vacate judgments, not just
motions to modify or amend.” citing, Foman v. Davis, 371 U.S. 178, 181 (1962)) The
Motion appears to be untimely; however, Melcher argues that the deadline should be
extended because neither he nor his newly intended attorney had access to the Clerk’s
Office via electronic filing for the final seven hours of the day of the deadline. This Court
is hesitant to accept Melcher’s reasoning because it creates the potential for “last minute”
manipulation of the Rule’s time requirement, but the propriety of Melcher’s theory can
wait for another case. In the opinion of this Court, it correctly applied the law to the facts

in the case before it and reached the proper result: Melcher’s claims were time-barred.
Melcher’s Rule 59(e) Motion is without merit.
Relief under Rule 60(b) is an extraordinary remedy and the requirements of the rule
must be strictly met. Longden v. Sunderman, 979 F.2d 1095, 1102 (5th Cir. 1992)

The

only truly arguable basis for Melcher’s request for relief under this Rule would be “newly
discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b).” But, this ground for possible relief was
actually addressed, albeit in a different context, in this Court’s pre-judgment rulings on the
Defendants’ limitations defenses.

This Court is not now convinced by Melcher’s

submissions that it would have reached any other result than it did. Brown v. Petrolite
Corp., 965 F.2d 38, 50 (5th Cir. 1992) (“Newly discovered evidence justifies relief . . .
only if the evidence . . . clearly would have produced a different result if presented before
the original judgment.”)
It is, therefore, ORDERED that the “Motion to Alter or Amend the Judgment
Pursuant to Rule 59(e) or, in the Alternative, Motion for Relief from Judgment Pursuant
to Rule 60(b)” (Instrument no. 27) of Plaintiff, John Ray Melcher, is DENIED.

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It is further ORDERED that Melcher’s “Motion for Leave to Respond/Reply to
Defendants’ Sur-Reply” (Instrument no. 36) is DENIED as moot; the Court offers no
opinion on the viability of any claims Melcher may have, if any, against any other persons
relating to the subject matter of this lawsuit.
It is further ORDERED that Melcher’s “Motion for Leave to File Second Amended
Complaint” (Instrument no. 28) is DENIED as moot.
DONE at Galveston, Texas, this

25th

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day of August, 2014.