Gonzalez v. Auto Zone Inc et al

Filing 181

MEMORANDUM AND ORDER DENIED 163 Opposed MOTION to Alter Judgment, 165 MOTION to Alter Judgment, 164 Opposed MOTION for Leave to File Motion for Leave (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PETE GONZALES,
Plaintiff,
v.
AUTOZONERS, LLC, et al,
Defendants.

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CIVIL ACTION NO. 4:09-4054

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S POSTJUDGMENT MOTIONS
On March 16, 2012, this Court entered a Memorandum and Order [Doc. # 158]
granting summary judgment to Defendants on all of Plaintiff’s claims. Plaintiff has
filed three post-judgment motions to alter or amend the Court’s rulings: (1)
“Plaintiff’s Motion for Leave to File Motion to Withdraw Plaintiff’s Non-Objection
to the Dismissal of Count III of Plaintiff’s Fourth Amended Complaint on Claims for
Relief under 29 U.S.C. § 1132(a)(3)” [Doc. # 164]; (2) “Plaintiff’s Rule 59(e) and
60(b)(6) Motion to Alter or Amend Court Order Granting Summary Judgment on All
Claims and to Relieve Plaintiff from the Memorandum and Order and Final Judgment
to Prevent Manifest Injustice” [Doc. # 165]; and (3) “Plaintiff’s Motion for Leave to
File Supplemental Brief in Support of Plaintiff’s Rule 59(e) and 60(b)(6) Motion (Ct.
Dkt. 165)” [Doc. # 169].

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At the Court’s instruction, see Order [Doc. # 172], Defendants filed one
response to all three motions. See Defendants’ Responses to Plaintiff’s Motion to
Withdraw and Motion to Alter or Amend Judgment (Including Supplemental Brief)
[Doc. # 174] (“Defendants’ Response”). Plaintiff filed a reply [Doc. # 179].
Plaintiffs’ motions now are ripe for decision. Having carefully considered the parties’
briefing, the applicable legal authorities, and all matters of record, the Court concludes
that Plaintiff’s motions should be denied.
Plaintiff seeks relief from this Court’s judgment under Rules 59(e) and
60(b)(6). Rule 59(e) permits a litigant to file a motion to alter or amend a judgment.1
Reconsideration of a judgment is an “extraordinary remedy,” and Rule 59(e) serves
a “narrow purpose” of allowing a party to bring errors or newly discovered evidence
to the Court’s attention.2 A litigant seeking relief under Rule 59(e) “must clearly
establish either a manifest error of law or fact or must present newly discovered
evidence.”3 A Rule 59(e) motion “cannot be used to argue a case under a new legal

1

FED. R. CIV. P. 59(e) (“A motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.”). Plaintiff filed Documents # 164 and
# 165 within 28 days of the Court’s Memorandum and Order on March 16, 2012. He
later was granted leave to file Document # 169. See Doc. # 172.

2

Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th Cir. 2004).

3

Balakrishnan v. Bd. of Supervisors of Louisiana State Univ. & Agr. & Mech. Coll.,
452 F. App’x 495, 499 (5th Cir. 2011) (citing Ross v. Marshall, 426 F.3d 745, 763
(continued...)

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theory.”4 Moreover, “an unexcused failure to present evidence available at the time
of summary judgment provides a valid basis for denying a subsequent motion for
reconsideration.”5
Rule 60(b)(6) provides that, “[o]n motion and just terms, the court may relieve
a party or its legal representative from a final judgment, order, or proceeding for
. . . any other reason that justifies relief.”6 Rule 60(b)(6) is a “residual or catch-all
provision to cover unforeseen contingencies.”7 However, relief is appropriate “only
if extraordinary circumstances are present.”8
The broad power granted by clause (6) is not for the purpose of relieving
a party from free, calculated, and deliberate choices he has made. A party
remains under a duty to take legal steps to protect his own interests.9

3

(...continued)
(5th Cir. 2005) (quotation marks and citation omitted)).

4

Id. (citing Ross, 426 F.3d at 763).

5

Templet, 367 F.3d at 479 (citing Russ v. Int'l Paper Co., 943 F.2d 589, 593 (5th
Cir.1991)).

6

FED. R. CIV. P. 60(b)(6). A motion under Rule 60(b) is not subject to the 28-day time
period imposed by Rule 59.

7

Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993).

8

Hesling v. CSX Transp., Inc., 396 F.3d 632, 642 (5th Cir. 2005).

9

Bohlin, 6 F.3d at 357 (quoting United States v. O'Neil, 709 F.2d 361, 373 n. 12 (5th
Cir. 1983)).

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A Rule 60(b) motion may not be used to raise arguments that could have been raised
prior to judgment or to argue new legal theories.10 Only extraordinary circumstances
justify “sacrificing ‘the principle of finality’ that undergirds Rule 60(b).”11
In this case, Plaintiff’s extensive post-judgment briefing does not present the
Court with grounds to grant the extraordinary remedies of Rules 59(e) or 60(b). With
the exception of Plaintiff’s citation to the Supreme Court’s decision in Cigna Corp.
v. Amara,12 Plaintiff identifies no newly discovered facts or recent changes in the law
that could justify reconsideration of the Court’s judgment. Rather, Plaintiff engages
in numerous arguments that could have been made, or were made, in his summary
judgment briefing that preceded the Court’s Memorandum and Order.13 These
arguments do not present valid grounds for post-judgment relief.14 They also fail to

10

Williams v. Toyota Motor Engineering & Mfg. N. Am, Inc., 2012 WL 1521640, at *3
(5th Cir. May 1, 2012) (citing Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th
Cir. 2003); Simon v. U.S., 891 F.2d 1154, 1159 (5th Cir. 1990)).

11

Weckesser v. Chicago Bridge And Iron, L.G., 447 Fed. Appx. 526, 530 (5th Cir. 2011)
(quoting Hesling, 396 F.3d at 638 (citing Seven Elves, Inc. v. Eskenazi, 635 F.2d 396,
401 (5th Cir.1981))).

12

Cigna Corp. v. Amara, 131 S. Ct. 1866 (2011).

13

For example, Plaintiff makes lengthy arguments regarding the proper standard of
review for ERISA claims, conflict of interest, and application of the substantial
evidence standard. All of these issues were addressed in the Memorandum and Order.

14

See Templet, 367 F.3d at 479; Hesling, 396 F.3d 642-43.

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“clearly establish” a “manifest error of law or fact” in the Court’s Memorandum and
Order.15
The Supreme Court’s Amara ruling also fails to warrant the Court’s
reconsideration or alteration of its rulings. Nor does it justify permitting Plaintiff to
withdraw his non-objection to dismissal of his equitable claim under 29 U.S.C.
§ 1132(a)(3).16 Amara was not decided after the Court’s ruling on March 16, 2012,
but rather was decided on May 16, 2011, a full ten months before the ruling.
Moreover, Amara was decided three weeks before Plaintiff filed his non-objection to
dismissal of the claim. A brief chronology of relevant events will illustrate that
Plaintiff had ample opportunity to invoke Amara, and to attempt to reinstate his
Section 1132(a)(3) claim, before judgment was entered.
On April 4, 2011, Defendants filed a motion to dismiss Plaintiff’s claims.
Plaintiff filed two requests for extension of time to file a response, both of which were
granted. On May 16, 2011, the Supreme Court decided Amara. Three weeks later,
on June 6, 2011, Plaintiff filed his brief responding to Defendants’ motion to dismiss.
In the brief, Plaintiff stated, “Plaintiff does not object to the dismissal of Count III, the

15

See Ross, 426 F.3d at 763.

16

Plaintiff’s motion to withdraw his non-objection to dismissal of his equitable claim
[Doc. # 164] does not invoke Rule 59 or Rule 60, and does not identify any authority
authorizing the relief he seeks.

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claim for relief under 29 U.S.C. § 1132(a)(3).”17 On June 16, 2011, the Court ruled
on Defendants’ motion to dismiss, denying the motion on all grounds except
Plaintiff’s Section 1132(a)(3) claim, which the Court dismissed on Plaintiff’s
agreement.18 In January 2012, after completion of discovery, Defendants moved for
summary judgment. Plaintiff’s briefing opposing summary judgment, filed in
February 2012, cited to Amara; however, Plaintiff did not move to withdraw his nonobjection to dismissal of his equitable claim.

After full briefing and careful

consideration, the Court granted summary judgment on March 16, 2012.19
Plaintiff’s counsel now regrets his non-opposition to dismissal of the claim, and
states that he was unaware of the Amara ruling on June 6, 2011, when he filed his
non-objection to dismissal of the claim.

However, as the above chronology

demonstrates, Plaintiff made no previous motion to reinstate his equitable claim, even

17

Doc. # 112, at 7.

18

Order [Doc. # 114], at 4 (“Plaintiff’s response unequivocally states that he does not
oppose dismissal of Count III, and he thus abandons this claim. Count III therefore
will be dismissed by agreement.”) (footnote omitted).

19

The Court held that, to the extent Plaintiff sought relief under Section 1132(a)(3), he
was barred by his previous agreement to dismiss the claim. Memorandum and Order
[Doc. # 158], at 20. The opinion added, however, that the equitable relief discussed
in Amara was a remedy for false or misleading information provided by a plan
administrator, and thus was based on facts materially different from those alleged by
Plaintiff in this case, i.e., Defendants’ alleged failure to provide him a copy of the
Summary Plan Description. Id. & n. 52 (citing Amara, 131 S. Ct. 1879-80 (discussion
reformation and estoppel)).

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after becoming aware of Amara. Rather, he waited until after the Court entered
judgment against him to attempt to resurrect his claim. Plaintiff’s request is, quite
simply, too late. Defendants are entitled to finality of the Court’s rulings, especially
when, as in this case, the Court has indulged Plaintiff’s counsel’s multiple requests to
amend pleadings and has repeatedly extended docket control deadlines.20 Counsel’s
decision to file a non-objection, which he now characterizes as a mistake, is not an
“extraordinary circumstance” justifying post-judgment relief under either Rule 59(e)
or Rule 60(b)(6).21

Moreover, given his previous, unequivocal legal position

regarding his equitable claim, Plaintiff now is judicially estopped from asserting a
contrary position.22
20

The Court gave Plaintiff extensive leeway in amendment of pleadings. Plaintiff
amended his complaint five times. Complaint [Doc. # 1] (December 18, 2009); First
Amended Complaint [Doc. # 4] (December 28, 2009); Second Amended Complaint
[Doc. # 40] (October 18, 2010); Third Amended Complaint [Doc. # 52] (November
30, 2010); Fourth Amended Complaint [Doc. # 83-1] (March 14, 2011).

21

See Bohlin, 6 F.3d at 357 (quoting O'Neil, 709 F.2d at 373 n.12) (“A party remains
under a duty to take legal steps to protect his own interests.”).

22

The judicial estoppel doctrine “‘prevents a party from asserting a position in a legal
proceeding that is contrary to a position previously taken in the same or some earlier
proceeding.’” RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 859 (5th Cir. 2010) (quoting
Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)); Hall v. GE Plastic
Pac. PTE Ltd., 327 F.3d 391, 396 (5th Cir. 2003). The doctrine “precludes litigants
from ‘playing fast and loose’ with the courts” and “prohibits parties from deliberately
changing positions based upon the exigencies of the moment.” Ergo, 73 F.3d at 598.
Application of the doctrine requires that the position to be estopped is “clearly
inconsistent” with its previous position, and that the court accepted the party’s
previous position. Hall, 327 F.3d at 396; see id. at 398-99 (party against whom
(continued...)

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It is hereby
ORDERED that Plaintiff’s Motion for Leave to File Motion to Withdraw
Plaintiff’s Non-Objection to the Dismissal of Count III of Plaintiff’s Fourth Amended
Complaint on Claims for Relief under 29 U.S.C. § 1132(a)(3) [Doc. # 164] is
DENIED. It is further
ORDERED that Plaintiff’s Rule 59(e) and 60(b)(6) Motion to Alter or Amend
Court Order Granting Summary Judgment on All Claims and to Relieve Plaintiff from
the Memorandum and Order and Final Judgment to Prevent Manifest Injustice [Doc.
# 165] is DENIED. It is further
ORDERED that Plaintiff’s Motion for Leave to File Supplemental Brief in
Support of Plaintiff’s Rule 59(e) and 60(b)(6) Motion (Ct. Dkt. 165) [Doc. # 169] is
DENIED.
SIGNED at Houston, Texas this 27th day of July, 2012.

22

(...continued)
doctrine is invoked need not have prevailed on the merits). Both criteria are satisfied
in this case.

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