Doss et al v. Young et al

Filing 172

ORDER DENYING 168 Motion for Reconsideration ; GRANTING 169 Motion to Act Pro Se ; DENYING 169 Motion to supplement; DENYING 169 Motion for Hearing; DENYING 169 Motion for Extension of Time to Supplement Record. Signed by Judge David Ezra. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LOUIS V. DOSS and CAROLYN
DOSS, Individually and d/b/a
MULLIGAN’S PUB,

)
)
)
)
Plaintiffs,
)
)
vs.
)
)
SGT. MARTIN MORRIS; OFFICER )
HARRY HOLT; and TABC AGENT )
SCOTT HELPENSTELL,
)
)
Defendants.
)
_____________________________ )

CV. NO. SA-11-CV-00116-DAE

ORDER: (1) DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION;
(2) GRANTING PLAINTIFFS’ MOTION FOR PERMISSION TO ACT PRO SE;
(3) GRANTING PLAINTIFFS’ MOTION TO ABATE PROCEEDINGS FOR 33
DAYS; (4) DENYING PLAINTIFFS’ MOTION TO SUPPLEMENT MOTION
FOR RECONSIDERATION; (5) DENYING PLAINTIFFS’ MOTION FOR
EVIDENTIARY REHEARING ON MOTION FOR SUMMARY JUDGMENT;
(6) DENYING AS MOOT PLAINTIFFS’ MOTION TO EXTEND TIME TO
SUPPLEMENT RECORD
Before the Court is a Motion to Reconsider Order Vacating Magistrate
Judge’s Memorandum and Recommendation brought by Plaintiffs Louis V. Doss
and Carolyn Doss (collectively, “Plaintiffs”). (Doc. # 168.) Plaintiffs also bring
several related motions, seeking leave to supplement their motion for
reconsideration and to act pro se. (Doc. # 169.) For the reasons given below, the

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Court DENIES Plaintiffs’ Motion to Reconsider (doc. # 168) and GRANTS IN
PART AND DENIES IN PART Plaintiffs’ miscellaneous related motions (doc.
# 169).
BACKGROUND
On May 15, 2013, this Court issued an order vacating the Magistrate
Judge’s January 16, 2013 Memorandum and Recommendation and granting the
Motion for Summary Judgment brought by Defendants Sergeant Martin Morris
and Officer Harry Holt (collectively, “Defendants”). (Doc. # 167.) On May 24,
2013, Plaintiffs filed a motion for reconsideration of that order. (Doc. # 168.)
Soon thereafter, Plaintiffs, acting pro se, filed the following five motions:
i.

Motion for Permission to Act Pro Se and for Leave to File
Documents;

ii.

Motion to Abate Proceedings for 33 Days and for Leave to Change
Attorneys;

iii.

Motion to Supplement Motion for Reconsideration filed by Robert
Wilson with additional relevant evidence;

iv.

Motion for Evidentiary Rehearing on Defendants’ Motion for
Summary Judgment;

v.

Motion to Extend Time to Supplement Record Due to Change of
Counsel and Need for Necessary Records from Wells Fargo Bank.

(Doc. # 169.) On May 28, 2013, Plaintiffs’ counsel filed a Motion to Withdraw as
Counsel for Plaintiffs (doc. # 170), which the Court granted. Defendants filed a
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Response in opposition to Plaintiffs’ motions on May 30, 2013. (Doc. # 171.)
LEGAL STANDARD
While the Federal Rules of Civil Procedure do not expressly provide
for a “motion for reconsideration,” such a motion is usually construed as either a
Rule 59(e) motion to alter or amend the judgment or a Rule 60(b) motion for relief
from a final judgment or order. Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1
(5th Cir. 2004). However, Rules 59(e) and 60(b) do not contemplate
reconsideration of interlocutory orders. See, e.g., Fed. R. Civ. P. 60(b) (specifying
that Rule 60(b) applies only to “a final judgment, order, or proceeding”) (emphasis
added). A district court may reconsider an interlocutory order pursuant to Federal
Rule of Civil Procedure 54(b), which allows courts to revise “any order or other
decision, however designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties . . . before the entry of judgment.”
Fed. R. Civ. P. 54(b). The Court possesses “the inherent procedural power to
reconsider, rescind, or modify an interlocutory order for cause seen by it to be
sufficient.” Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. Unit A 1981).
Because Plaintiffs seek reconsideration of an order granting summary judgment to
fewer than all defendants, their motion is governed by Rule 54(b).
The general practice of courts in this district has been to evaluate Rule
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54(b) motions to reconsider interlocutory orders under the same standards that
govern Rule 59(e) motions to alter or amend a final judgment. See e.g., Vladmir
Ltd. v. Pac. Parts Supply Co., No. SA-08-CV-819-XR, 2009 WL 4110288, at *2
(W.D. Tex. Nov. 20, 2009); Dos Santos v. Bell Helicopter Textron, Inc. Dist., No.
4:06-CV-292-Y, 2009 WL 2474771, at *3 (N.D. Tex. Aug. 13, 2009); T-M
Vacuum Prods., Inc. v. TAISC, Inc., No. C-08-309, 2008 WL 2785636, at *2 (S.D.
Tex. July 16, 2008); Sky Techs. LLC v. SAP AG, No. 2:06-CV-440 (DF), 2008
WL 2775487 (E.D. Tex. July 15, 2008).
A Rule 59(e) motion “calls into question the correctness of a
judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)
(quoting 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) “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, 863–64 (5th Cir. 2003) (quoting
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Under Rule 59(e),
there are three primary grounds for reconsideration: (1) an intervening change in
the controlling law, (2) newly discovered evidence, or (3) manifest error of law or
fact. See Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003).
“‘Manifest error’ is one that ‘is plain and indisputable, and that amounts to a
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complete disregard of the controlling law.’” Guy v. Crown Equip. Corp., 394 F.3d
320, 325 (5th Cir. 2004) (quoting Venegas–Hernandez v. Sonolux Records, 370
F.3d 183, 195 (1st Cir. 2004)).
DISCUSSION
I.

Motion for Reconsideration
Plaintiffs seek reconsideration of the Court’s May 15, 2013 Order

vacating the Magistrate Judge’s Memorandum and Recommendation and granting
Defendants’ Motion for Summary Judgment. Plaintiffs contend that two aspects of
the Court’s decision were in error, arguing that: (1) they adequately pleaded the
deprivation of a property interest in “lost profits” from their business under the
Fourteenth Amendment, and (2) the summary judgment record supports a finding
that Plaintiffs were deprived of their liberty interest in pursuing their chosen
occupation of operating a bar, Mulligan’s Pub.
As a preliminary matter, Plaintiffs’ motion does not appear to meet
any of the criteria for reconsideration under Rule 59(e). Plaintiffs essentially ask
the Court to re-weigh the evidence presented on summary judgment and reach a
different outcome. Although Plaintiffs now attempt to bolster several of their
arguments, they do not point to any manifest errors of law or fact that warrant
reconsideration of the Court’s decision. A Rule 54(b) motion, like a Rule 59(e)
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motion, is not the proper vehicle for rehashing evidence, legal theories, or
arguments. See Templet, 367 F.3d at 479. Additionally, Plaintiffs have not
presented any newly discovered evidence or an intervening change in controlling
law to the Court.
A.

Property Interest in Lost Profits
The Fourteenth Amendment provides that no state shall deprive a

person of life, liberty, or property without due process of law. U.S. Const. amend.
XIV, § 1. To maintain a cause of action for a violation of substantive due process,
a plaintiff must show (1) the existence of a protected property or liberty interest,
and (2) arbitrary or capricious deprivation of that interest. See Honore v. Douglas,
833 F.2d 565, 568. (5th Cir. 1987).
Plaintiffs contend the Court improperly found that they had not
adequately pleaded or established a substantive due process claim for the
deprivation of a property interest in “lost profits” from their business, Mulligan’s
Pub. Plaintiffs’ substantive due process claims are contained in paragraph 58 of
the Third Amended Complaint, which provides:
Plaintiffs would show that the actions of Defendants caused the Plaintiffs to
be deprived of the lawful use of their business, that their property has been
damaged and their investment in their business has suffered as a result of
these violations of their civil and constitutional rights, specifically their
liberty right to own and operate a lawful business. Plaintiffs have valuable
property rights in the license they enjoy with the TABC and in the business
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they own which is being jeopardized by these violations. These claims arise
and are being brought pursuant to violations of the Fourteenth Amendments
[sic].
(Doc. # 76 ¶ 28 (emphasis added).) This paragraph only explicitly references a
violation of Plaintiffs’ “liberty right”—i.e. liberty interest—in the operation of
their business. While Plaintiffs assert they have “valuable property rights” in “the
license they enjoy with the TABC” and generally in the “business they own,” they
state only that these were “jeopardized” by “these violations”—namely, a violation
of Plaintiffs’ liberty interest in the operation of their business. Plaintiffs do not
allege an actual deprivation of their “valuable property rights” and make no
reference to a property interest in “lost profits.” Thus, on its face, the Third
Amended Complaint does not appear to bring a separate claim for a substantive
due process violation based on deprivation of a property interest in “lost profits.”
Moreover, as previously explained by this Court, “[t]he Constitution
does not create property interests; they are created and their dimensions are defined
by existing rules or understandings that stem from an independent source such as
state law.” Bryan v. City of Madison, 213 F.3d 267, 275 (5th Cir. 2000) (citations
omitted) (internal quotation marks omitted). In the Fifth Circuit, Plaintiffs must
establish a protectible property interest “by reference to state law.” Id. at 274–75.
On summary judgment, Plaintiffs failed to cite any state law (or federal statute) as
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authority for their property interest in “lost profits” from their business. Given the
vagueness of the pleadings and that Plaintiffs did not make any showing of the
deprivation of a property right by reference to state law, this Court concluded that
Plaintiffs had not properly asserted a separate claim for violation of a property
interest in “lost profits.”
However, even if Plaintiffs did bring a separate substantive due
process claim for deprivation of a property interest in “lost profits,” this claim fails.
Property interests “are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or
understandings that secure certain benefits and that support claims of entitlement to
those benefits.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972). “A
legitimate claim of entitlement” to the benefit is required. Id. The Supreme Court
has held that a “generalized right to be secure in one’s business interests” is not a
protectible property interest under the Due Process Clause of the Fourteenth
Amendment. College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 672 (1999). In discussing whether “businesses are ‘property’
within the meaning of the Due Process Clause,” the Supreme Court has also stated:
The assets of a business (including its good will) unquestionably are
property, and any state taking of those assets is unquestionably a
“deprivation” under the Fourteenth Amendment. But business in the sense
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of the activity of doing business, or the activity of making a profit is not
property in the ordinary sense. . .”
Id. at 675. Indeed, the “activity of doing business” and the “activity of making a
profit” appear instead to involve a plaintiff’s liberty interest in pursuing her chosen
occupation. The Fourth Circuit has explained, “[w]hile ‘property’ protected by the
Fourteenth Amendment includes actual and existing benefits and entitlements,
‘liberty’ protected by the Amendment includes freedom of movement and action
and encompasses a right to pursue benefits and entitlements.” Bannum, Inc. v.
Town of Ashland, 922 F.2d 197, 201 (4th Cir. 1990) (citing Roth, 408 U.S. at 576).
Here, Plaintiffs allege that the actions of Defendants inhibited
Plaintiffs’ right to conduct their business and to receive profits from their business.
This does not establish a separate, independent property interest in “lost profits,”
but rather implicates Plaintiffs’ liberty interest in pursuing their chosen occupation.
Additionally, Plaintiffs have not cited in their motion for reconsideration, and this
Court has not found, any Texas law or federal statute indicating that a business
owner has a property right enforceable by law to anticipated profits or revenues.
However, “lost profits” are not unimportant to Plaintiffs’ substantive
due process claim for the deprivation of their liberty interest in pursuing their
chosen occupation of operating a bar. As stated by the Fifth Circuit, “anticipated
profits may be considered a measure of damages from the deprivation of a liberty
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interest.” Stidham v. Tex. Comm’n on Private Sec., 418 F.3d 486, 492 n.9 (5th
Cir. 2005). “Such a conclusion is obviously buttressed by the fact that the
elements of a constitutional liberty interest claim embody no property requirements
as does the property prong of the Due Process Clause.” Id.
Finally, even if Plaintiffs established a protectible property interest in
“lost profits,” they did not establish on summary judgment that they were deprived
of such a property interest. Plaintiffs have not been forced to close their business
or to lose their liquor license based on the alleged actions of Defendants.
Mulligan’s Pub continues to operate and to generate income; Plaintiffs have not
demonstrated a total loss of ability to generate profits. Thus, Plaintiffs’ motion for
reconsideration fails in this respect.
B.

Deprivation of Liberty Interest in Operation of Business
In its prior order, the Court found no constitutional deprivation of

Plaintiffs’ liberty interest in pursuing their chosen occupation of operating a bar,
Mulligan’s Pub. More specifically, the Court found that Plaintiffs failed to present
sufficient evidence that they had been “effectively foreclosed” from operating their
business. In their motion for reconsideration, Plaintiffs contest this finding,
arguing that the Court misconstrued the evidence contained in the summary
judgment record. Plaintiffs emphasize one fact in particular already considered
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and weighed by this Court on summary judgment—namely, that Plaintiffs infused
money from their savings into their business.1
The Court declines to reconsider its decision on this basis. “It is well
settled that motions for reconsideration should not be used . . . to re-urge matters
that have already been advanced by a party.” Helena Labs. Corp. v. Alpha
Scientific Corp., 483 F. Supp. 2d 538, 539 (E.D. Tex. 2007) (citing Browning v.
Navarro, 894 F.2d 99, 100 (5th Cir. 1990)). The Court remains convinced that it
reached the correct decision for the reasons articulated in its prior order. Plaintiffs’
motion for reconsideration is therefore denied.
II.

Miscellaneous Pro Se Motions
Plaintiffs, acting pro se, have filed several motions seeking, among

other things, leave to supplement their motion for reconsideration and an
evidentiary rehearing on Defendants’ Motion for Summary Judgment.
Plaintiffs contend that the Court misconstrued evidence of monthly
income and the “$20,000”-a-month profitability threshold testified to by Louis
Doss in his affidavit on summary judgment. They request leave to clarify the

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In its prior order, the Court stated: “Plaintiffs maintain that sales
increased—despite the fact that Mulligan’s Pub attracted fewer customers due to
the alleged harassment of Defendants Morris and Holt—because Mulligan’s Pub
increased prices and Plaintiffs infused money from their savings into the business.”
(Doc. # 167 (emphasis added).)
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record with respect to their monthly income and to demonstrate why the business
required infusions of additional capital. Plaintiffs state that the additional capital
came in the form of business loans from Wells Fargo Bank of Kerrville, Texas.
They seek to supplement their motion for reconsideration with these loan records
because the records “did not seem necessary at [sic] when the original filings for
the summary judgment were had.” (Doc. # at 169.)
Under extraordinary circumstances, a court may entertain a motion for
reconsideration in the light of evidence not in the summary judgment record. ICEE
Distribs., Inc. v. J & J Snack Foods Corp., 445 F.3d 841, 847 (5th Cir. 2006).
However, “[a]n unexcused failure to present evidence available at the time of
summary judgment provides a valid basis for denying a subsequent motion for
reconsideration.” Templet, 367 F.3d at 479.
Any additional records regarding damages to Plaintiffs’ business
could and should have been submitted in response to Defendants’ Motion for
Summary Judgment. Plaintiffs do not assert that the loan records are “newly
discovered,” nor do they provide any reason why the records could not have been
timely submitted with their original response to Defendants’ Motion for Summary
Judgment. Moreover, pursuant to the Scheduling Order, discovery in this case
ended on October 31, 2012. (Doc. # 123.) Plaintiffs offer no explanation why they
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did not timely produce the loan documents by the discovery deadline. At this late
juncture in the proceedings, more than six months after the discovery deadline
passed, to allow Plaintiffs to submit new evidence would prejudice Defendants by
unduly delaying the final disposition of this proceeding and requiring Defendants
to incur additional expense. Moreover, in its prior order, the Court considered the
fact that Plaintiffs had infused additional capital, albeit in the form of savings
rather than business loans, into their business; thus, it is unclear how new evidence
of business loans would alter the Court’s analysis.
For all these reasons, the Court denies Plaintiffs’ Motion to
Supplement Motion for Reconsideration and their Motion for Evidentiary
Rehearing on Defendants’ Motion for Summary Judgment. Plaintiffs’ Motion to
Extend Time to Supplement Record is therefore denied as moot. However, the
Court grants Plaintiffs’ motion seeking to abate the proceedings until July 1, 2013
in order to give Plaintiffs time to secure new counsel.
CONCLUSION
For the reasons given above, the Court DENIES Plaintiffs’ Motion to
Reconsider (doc. # 168) and GRANTS IN PART AND DENIES IN PART
Plaintiffs’ miscellaneous related motions (doc. # 169) as follows:

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i.

Plaintiffs’ Motion for Permission to Act Pro Se and for Leave to File
Documents is GRANTED. If Plaintiffs wish to file documents
electronically, they may do so pursuant to the electronic filing
requirements for pro se litigants contained in the Administrative
Policies and Procedures for Electronic Filing in Civil and Criminal
Cases, found online in the “General Information” section of the
“CM/ECF” tab at www.txwd.uscourts.gov.

ii.

Plaintiffs’ Motion to Abate Proceedings for 33 Days and for Leave to
Change Attorneys is GRANTED. The proceedings will be stayed
until July 1, 2013 to allow Plaintiffs time to secure new counsel.

iii.

Plaintiffs’ Motion to Supplement Motion for Reconsideration is
DENIED.

iv.

Plaintiffs’ Motion for Evidentiary Rehearing on Defendants’ Motion
for Summary Judgment is DENIED.

v.

Plaintiffs’ Motion to Extend Time to Supplement Record is DENIED
AS MOOT.

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IT IS SO ORDERED.
DATED: San Antonio, Texas, June 17, 2013.

_____________________________
David Alan Ezra
Senior United States District Judge

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