Vackar v. Sentry Supply Inc

Filing 68

MEMORANDUM AND ORDER enterted DENYING 59 First MOTION for New Trial. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MICHAEL VACKAR,
Plaintiff,
VS.
SENTRY SUPPLY INC., d/b/a SUPERIOR
SUPPLY & STEEL
Defendant.

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CIVIL ACTION NO. H-12-3716

MEMORANDUM AND ORDER DENYING MOTION FOR NEW TRIAL
The plaintiff, Michael Vackar, moved for a new trial, challenging this court’s judgment
dismissing his wrongful-discharge claims and granting defendant Sentry Supply, Inc.’s
(“Superior’s”) counterclaims for fraud, defamation, money had and received, and sanctions. (Docket
Entry No. 59). Superior responded and moved to strike the motion for new trial. (Docket Entry No.
67). Based on a careful review of the motion for new trial and the motion to strike, the parties’
briefs and submissions, the record, and the applicable law, the court denies the motion to strike and
denies the motion for new trial. The reasons are explained below.
I.

Background
Vackar sued Superior under Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.

1985), which prohibits an employer from firing an employee based on the refusal to perform an
illegal act. Vackar alleged that his supervisor instructed him to take clients to strip clubs and pay
women to have sex with them to blackmail the clients, and to pay by submitting expense vouchers
falsified to hide this activity. Vackar alleged that he was fired for refusing to obey those
instructions. Superior moved for summary judgment and counterclaimed for fraud, defamation,
money had and received, and business disparagement. (Docket Entry Nos. 6, 19, 32). Superior also

moved for sanctions. (Docket Entry No. 37).
After delays to permit Vackar to replace his counsel, conduct discovery, and respond, the
court granted Superior’s motion for partial summary judgment on Vackar’s wrongful-termination
claim. The court carefully reviewed the record and found that the relevant, undisputed evidence
showed that the reasons for firing Vackar included his submission of fraudulent reimbursement
requests for entertaining clients (despite refusing to spend money on sex-club entertainment and
instead not entertaining the clients at all), and his extremely poor job performance. The court found
that no reasonable factfinder could conclude from the record evidence that Vackar’s termination was
based solely on his refusal to take clients to sexually oriented clubs and to have dancers provide
them sexual favors. (Docket Entry No. 28).
On January 2, 2014, the court granted Superior’s motion for sanctions. The court found that
other than his own statement, and contrary to his claim to the media that he had witnesses who
would corroborate his evidence about Superior, Vackar had no evidence to support any of the
statements he made in his pleadings, to the media, or online. (Docket Entry No. 45). On November
7, 2014, the court resolved the remaining issues and ordered Vackar to pay Superior $18,225 as
damages and as a sanction. (Docket Entry No. 56). The amount was less than Superior demanded,
reflecting in part Vackar’s resources and the need to avoid a chilling effect on whistle-blower
claims.
Vackar moved for a new trial, arguing that there were factual disputes material to
determining whether he was fired for falsifying expense reports or for refusing to commit illegal
acts. Vackar also asked the court to set aside its sanctions order, asserting that Superior’s sanctions
motion was procedurally deficient. Superior responded both by moving to strike the motion for new
trial and by opposing it on the merits.

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II.

The Applicable Legal Standard
Rule 59 of the Federal Rules of Civil Procedure states that “[t]he court may, on motion, grant

a new trial on all or some of the issues — and to any party — as follows: (A) after a jury trial, for
any reason for which a new trial has heretofore been granted in an action at law in federal court; or
(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit
in equity in federal court.” FED. R. CIV. P. 59. “A new trial may be granted, for example, if the
district court finds the verdict is against the weight of the evidence, the damages awarded are
excessive, the trial was unfair, or prejudicial error was committed in its course.” Beckham v. La.
Dock Co., L.L.C., 124 Fed. Appx. 268, 270 (5th Cir. 2005) (citing Smith v. Transworld Drilling Co.,
773 F.2d 610, 612 (5th Cir. 1985)). A motion for a new trial should be granted only when “the
verdict is against the great weight of the evidence, not merely against the preponderance of the
evidence.” Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 838–39 (5th Cir. 2004).
A motion for a new trial after a grant of summary judgment is treated as a Rule 59(e) motion.
Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 748, n.9 (5th Cir. 2006) (citing Patin v. Allied
Signal, Inc., 77 F.3d 782, 785 n.1 (5th Cir. 1996); see also Harcon Barge Co. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 669–70 (5th Cir. 1986) (“‘[A]ny motion that draws into question the
correctness of a judgment is functionally a motion under Civil Rule 59(e), whatever its label.’”)
(quoting 9 MOORE’S FEDERAL PRACTICE ¶ 204.12[1], at 4-67 (1985)). A Rule 59(e) motion “calls
into question the correctness of a judgment.” Templet v. Hydrochem Inc., 367 F.3d 473, 478–79 (5th
Cir. 2004) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). “A motion to
alter or amend the judgment under Rule 59(e) ‘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

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F.3d 854, 863–64 (5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.
1990)).
Relief is also appropriate when there has been an intervening change in the controlling law.
Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir. 2003). Altering, amending, or
reconsidering a judgment under Rule 59(e) is an “extraordinary remedy” that courts should use
sparingly. Templet, 367 F.3d at 479; see also 11 CHARLES A. WRIGHT, ARTHUR R. MILLER, &
MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2810.1, at 124 (2d ed. 1995). The Rule
59(e) standard “favors denial of motions to alter or amend a judgment.” S. Constructors Group, Inc.
v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). A motion to reconsider may not be used to
relitigate old matters or to raise arguments or present evidence that could have been raised before
the entry of the judgment or order. 11 WRIGHT, MILLER,

AND

KANE, FEDERAL PRACTICE &

PROCEDURE § 2810.1 at 127–28 (footnotes omitted).
III.

Analysis
A motion for reconsideration under Rule 59(e) must be filed within one year of the

challenged order. FED. R. CIV. P. 59(e). The court issued its summary judgment opinion on
Vackar’s Sabine Pilot claims on July 8, 2013. (Docket Entry No. 28). Vackar did not request
reconsideration within one year. The request for reconsideration of that decision is time-barred.
Vackar’s challenges to the sanctions award and the summary judgment grant in favor of
Superior on its counterclaims are timely. But neither these timely challenges, nor Vackar’s untimely
challenges to the dismissal of his Sabine Pilot claims, present a basis to modify the court’s prior
orders. The court extensively considered and rejected Vackar’s arguments that there was evidence
that Superior fired him for refusing to engage in illegal activity. But Vackar admitted that he had
submitted fraudulent reimbursement requests after he was confronted with evidence of their falsity.

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And Superior presented extensive evidence that its policies prohibited the conduct Vackar alleged;
that no one corroborated Vackar’s claims about his supervisor’s instructions; that Vackar had not
spoken out earlier, despite numerous opportunities to do so; and that Vackar’s abysmal job
performance in the months he worked for Superior contributed to the decision to fire him. These
facts were undisputed and allowed the court to decide the motions for summary judgment on
Vackar’s claims and Superior’s counterclaims without making credibility determinations or
weighing evidence on disputed issues. No reasonable factfinder could conclude from the record that
Vackar’s termination was based solely on his refusal to take clients to strip clubs or to obtain sexual
favors for them.
Vackar also argues that Superior’s sanctions motion was defective because it was not filed
separately or served on Vackar before filing, as Rule 11 requires. Superior filed its sanctions motion
separately from any other motion on September 30, 2013, and sent it to Vackar by certified mail on
September 6, 2013. (Docket Entry No. 37, Ex. A). The Rule 11 requirements were met.
IV.

Conclusion
Vackar’s motion for new trial, (Docket Entry No. 59), is denied. Superior’s motion to strike,

(Docket Entry No. 67), is denied.
SIGNED on January 26, 2015, at Houston, Texas.

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Lee H. Rosenthal
United States District Judge

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