Menard v. St. Joseph Emergency Physicians, PLLC et al
ORDER DENYING 34 Opposed MOTION for Rehearing of Order of Dismissal of 33 Order Adopting Memorandum and Recommendations, GRANTING leave to amend premises liability claim.(Signed by Judge Gray H Miller) Parties notified.(rkonieczny, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
ST. JOSEPH EMERGENCY PHYSICIANS, PLLC,
and ST. JOSEPH CENTER LLC, d/b/a
ST. JOSEPH MEDICAL CENTER,
CIVIL ACTION H-16-800
Pending before the court is a motion for rehearing filed by plaintiff Julia Menard. Dkt. 34.
After considering the motion, response, related documents in the record, and the applicable law, the
court is of the opinion that the motion for rehearing should be DENIED but that leave to amend
should be GRANTED.
The court referred this case to Magistrate Judge Nancy K. Johnson pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B). Dkt. 9. On July 29, 2016, defendant St. Joseph Emergency Physicians,
PLLC (“SJEP”) filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1),
(4)(m), (5), and (6) and 28 U.S.C. § 1448. Dkt. 22. Menard filed a response on August 1,2016.
Dkt. 24. After receiving leave to file a late reply, SJEP filed a reply on December 19, 2016. Dkt. 27.
The Magistrate Judge entered an amended memorandum, recommendation, and order (“M&R”)
regarding the motion to dismiss on February 28, 2017. Dkt. 32. She recommended that SJEP’s
motion to dismiss be granted and recommended, sua sponte, that Menard’s premises liability claims
against defendant St. Joseph Medical Center, LLC (“St. Joseph’s”) also be dismissed. Dkt. 33.
Neither party timely filed objections to the M&R. On March 22, 2017, the court adopted the
M&R in full, granted SJEP’s motion to dismiss and also dismissed Menard’s premises liability claim
against St. Joseph’s. Dkt. 33. Menard filed the instant motion for rehearing on March 27, 2017.
Dkt. 34. St. Joseph’s filed a response. Dkt. 36. SJEP did not file a response. The motion is now
ripe for disposition.
II. LEGAL STANDARD AND ANALYSIS
While it is not entirely clear, Menard appears to object to all of the Magistrate Judge’s
recommendations and to this court’s order adopting the recommendations. See Dkt. 34. Menard
contends that her complaint states a prima facie case of premises liability against St. Joseph’s. Id.
Menard asserts that she did not object to the M&R because her deposition was not transcribed in
sufficient time. Id. She asserts that relevant portions of her deposition, which she attached to the
motion for rehearing, show “offending acts by defendant and the intoxicated patient.” Id.
Motion for Rehearing
The Federal Rules of Civil Procedure do not recognize a motion for reconsideration or
rehearing. Edwards v. City of Hous., 78 F.3d 983, 995 (5th Cir. 1996). However, motions that
challenge a prior judgment on the merits are treated as either a Rule 59(e) or Rule 60(b) motion. Id.
“If the motion is served within  days of the rendition of judgment, the motion falls under Rule
59(e); if it is served after that time, it falls under Rule 60(b).” Ford Motor Credit Co. v. Bright, 34
F.3d 322, 324 (5th Cir. 1994). Here, the motion was filed within 28 days, so the court considers it
pursuant to Rule 59(e). 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 F.3d 854, 864 (5th Cir. 2003) (quoting Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
There are several problems with Menard’s motion for rehearing. First, Menard’s excuse for
failing to object in the first place is suspect. She states that she did not timely file objections to the
Magistrate Judge’s M&R because she was waiting for her deposition to be transcribed. See Dkt. 34.
However, she states that she received the transcribed deposition on March 7, 2017. See id. This was
exactly seven days after the M&R was filed, giving Menard a full week to review the deposition and
file objections. Second, Menard could have filed a request for an extension rather than simply
ignoring the deadline. Third, since the motion at issue was a motion to dismiss and the court cannot
consider evidence outside of the complaint when considering a motion to dismiss, the only possible
relevance of a deposition would be if one were needed to make a case to amend the complaint to add
new facts. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999) (“The court will not look
beyond the face of the pleadings to determine whether relief should be granted based on the alleged
facts.”). And since the deposition for which Menard was waiting was her own deposition, there was
really no need to wait for it to be transcribed to explain new facts known to Menard that may have
elevated her claim to one that could survive a motion to dismiss. Thus, the court finds Menard’s
argument regarding the tardiness of her objections entirely unconvincing. Her motion does not
“clearly establish either a manifest error of law or fact” or “present newly discovered evidence.”
Rosenzweig, 332 F.3d at 864. The motion for a rehearing is DENIED.
Motion to Amend
However, after reviewing the deposition testimony attached to the motion for rehearing and
in the interest of justice, the court construes the arguments in the motion for a rehearing as a motion
to amend. The court considers the following factors when determining whether to allow an
amendment at this point in the case: “‘undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of the allowance of the amendment, [and] futility of the
amendment.’” Rosenzweig, 332 F.3d at 864 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct.
227 (1962)). The court does not believe that Menard’s counsel delayed in seeking to amend in bad
faith or that an amendment will cause undue prejudice to the defendants at this early stage in the
litigation. Thus, the court will focus on whether an amendment would be futile.
In the motion, Menard mainly takes issue with the dismissal of the premises liability claim
against St. Joseph’s. Menard’s premises liability claim against St. Joseph’s is based on her
allegation that she was assaulted by an intoxicated patient while performing her duties at St. Joseph’s
as an employee of SJEP. Dkt. 13. She contends that St. Joseph’s negligently failed to provide a safe
and secure workplace. Id. In the M&R, the Magistrate Judge relied primarily on Timberwalk
Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998), when recommending that
Menard’s premises liability claim against St. Joseph’s be dismissed. See Dkt. 32. In Timberwalk,
the Texas Supreme Court noted that generally “a person has no legal duty to protect another from
the criminal acts of a third person.” 972 S.W.2d at 756. However, it explained that there is an
exception if the person or entity controlling the premises “‘knows or has reason to know of an
unreasonable or foreseeable risk of harm to the invitee.’” Id. (quoting Lefmark Mgmt. Co. v. Old,
946 S.W.2d 52, 53 (Tex. 1997)). The court specifically found that “[w]hen the ‘general danger’ is
the risk of injury from criminal activity, the evidence must reveal ‘specific previous crimes on or
near the premises’ in order to establish foreseeability.” Id. Thus, it held that the “foreseeability of
an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on a person who
owns or controls premises to protect others on the property from the risk.” Id. In ruling on the
motion to dismiss and recommending the sua sponte dismissal of the premises liability claim against
St. Joseph’s, the Magistrate Judge noted that Menard failed to allege that there were assaults at St.
Joseph’s “that would put [the defendants] on notice of the foreseeable risk that the complained-of
assault could occur.” Dkt. 32.
The court has reviewed the selections of Menard’s deposition attached to Menard’s motion
and finds that an amendment of the premises liability allegations in the complaint likely would not
be futile. The court therefore GRANTS leave to amend the premises liability claim only. The court
instructs Menard’s counsel to closely review the reasoning in the M&R and the Timberwalk decision
before amending and to confer with his client regarding any facts that may support the claim prior
to amending the claim. Menard’s counsel shall file the second amended complaint within fourteen
days of the date of this order. No extensions and no further motions to amend will be considered by
this court or by the Magistrate Judge.
In conclusion, Menard’s motion for a rehearing is DENIED. However, the court construes
her arguments as seeking leave to amend her premises liability claim, and leave to amend is
GRANTED in accordance with the terms discussed above.
Signed at Houston, Texas on May 18, 2017.
Gray H. Miller
United States District Judge
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