Cutler et al v. Louisville Ladder, Inc. et al

Filing 66

MEMORANDUM AND ORDER DENIED 52 MOTION for Reconsideration of 45 Memorandum and Order MOTION for Reconsideration of 45 Memorandum and Order MOTION for Reconsideration of 45 Memorandum and Order MOTION for Reconsideration of 45 Memorandum and Order (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JOSHUA CUTLER, et al.,
Plaintiffs,
v.
LOUISVILLE LADDER, INC.,
Defendant.

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CIVIL CASE NO. 4:10-4684

MEMORANDUM AND ORDER
On July 20, 2012, this Court entered a Memorandum and Order [Doc. # 45]
excluding Michael Van Bree’s Supplemental Report. On August 15, 2012, Defendant
filed its “Motion for Reconsideration of Order Excluding Michael Van Bree’s
Supplemental Report and Limiting His Testimony Based Thereon and Motion to
Extend Defendant’s Expert Disclosure Deadline” [Doc. # 52], seeking reconsideration
under Rule 59(e). Plaintiff filed a Response, see Doc. # 58, on August 19, 2012.
At Docket Call on August 20, 2012, the Court informed Defendant Louisville
Ladder, Inc., that the motion was likely to be denied. However, the Court held the
motion under advisement and told Defendant that it could file a Reply on or before
August 22, 2012. Defendant has not filed a Reply.

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120906.1417

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
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
Defendant has submitted new evidence to the Court, including declarations
from Michael Van Bree and from Plaintiff’s counsel. Having reviewed the parties’
briefing, applicable legal authorities, and all matters of record, the Court finds that
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
(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)).

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120906.1417

2

Defendant has not presented material evidence that was unavailable to Defendant
before the Court’s ruling. In addition, Defendant fails to clearly establish a manifest
error of law or fact, or persuasive grounds to alter the Court’s decision. The
extraordinary remedy of reconsideration is unwarranted.
It is hereby
ORDERED that Defendant’s Motion for Reconsideration of Order Excluding
Michael Van Bree’s Supplemental Report and Limiting His Testimony Based Thereon
and Motion to Extend Defendant’s Expert Disclosure Deadline [Doc. # 52] is
DENIED.
SIGNED at Houston, Texas, this 6th day of September, 2012.

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120906.1417

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