United States District Court, W.D. Louisiana, Lake Charles Division
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
the court is a Motion for Reconsideration [doc. 28], filed by
plaintiff Carolyn Harper in response to our ruling [doc. 25]
denying her Motion to Compel Discovery Responses [doc. 16].
Academy of Training School, LLC and Progressive Buildings,
LLC (“defendants”) oppose the motion. Doc. 33.
suit the plaintiff, a licensed practical nurse and former
employee of defendant Academy of Training School, LLC,
claims a violation of the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq., based on the defendants'
alleged failure to properly compensate her for the overtime
hours she worked. Doc. 1. In the Motion to Compel [doc. 16],
plaintiff sought production of time sheets showing her hours
worked. Through their response, defendants stated that they
had provided all of the documentation they had and that,
while they believed they no longer possessed the weekly time
sheets for most of the relevant dates, they did have and had
produced daily sign-in sheets, which they asserted were an
accurate log of the hours worked by plaintiff. Doc. 24. They
also maintained that, although plaintiff had indicated that
she did not consider these sign-in sheets responsive, the
data in those sheets should match with the time sheets sought
by plaintiff unless she had misrepresented her hours worked.
Id. Noting that the plaintiff had not filed a reply
within the allotted time and that we could not compel the
defendants to produce what they did not have, we denied the
Motion to Compel in a ruling issued on August 9, 2017. Doc.
filed his motion to reconsider later that same day, offering
that the failure to file a reply was due to a good-faith
error on counsel's part in misreading an electronic order
that terminated a previously set trial date. Doc. 28, att. 1,
p. 2. Plaintiff submitted an out of time reply to the Motion
to Compel on the same day, arguing that the daily sign-in
sheets are not responsive and requesting alternative relief
under Rule 37(b) of the Federal Rules of Civil Procedure in
the event that we find defendants are not able to produce the
time sheets. Doc. 29. The defendants oppose the Motion to
Reconsider. Doc. 33. They offer continuing opposition to the
notion that they have not met their discovery obligations and
that plaintiff is entitled to any alternative relief for
their failure to produce the time sheets. Id.
Federal Rules of Civil Procedure do not recognize a
“Motion to Reconsider.” Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th
Cir. 1990), abrogated on other grounds by Little v.
Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). However,
as plaintiff notes, when such motions challenge a prior
judgment on the merits they are construed as motions to alter
or amend under Rule 59(e) if served within ten days of the
judgment, or otherwise as motions for relief from judgment
under Rule 60(b). Id. Where the motion to reconsider
relates to an interlocutory order, however, the motion is
properly construed under Rule 59(e) regardless of how much
time has passed between the court's ruling and the motion
for reconsideration. Namer v. Scottsdale Ins. Co., 314
F.R.D. 392, 394 (E.D. La. 2016).
motion filed under Rule 59(e) “serves the narrow
purpose of allowing a party to correct manifest errors of law
or fact or to present newly discovered evidence.”
Id. at 394-95 (quoting Waltman v. Int'l
Paper Co., 875 F.2d 468, 473 (5th Cir. 1989))
(alteration omitted). Although this motion is an
extraordinary remedy “and should not be used to
relitigate old matters, raise new arguments, or present
evidence that could have been raised prior to the entry of
judgment, ” the district court has considerable
discretion to grant or deny relief under Rule 59(e).
Roman v. Western Mfg., Inc., 2010 WL 5092977, *2
(W.D. La. Nov. 29, 2010) (citations omitted). A Rule 59(e)
motion is properly granted when (1) an intervening change in
controlling law has occurred, (2) new evidence has become
available, or (3) it is necessary to correct a clear error of
law or prevent manifest injustice. Id. (citing
Illinois Cent. R. Co. v. Harried, 2010 WL 382323, *2
(S.D.Miss. Jan. 28, 2010).
the motion is not to correct any error on the part of the
court or based on the discovery of new evidence, but rather
to allow the court to consider the arguments plaintiff's
counsel would have made had he filed his reply brief within
the deadlines. See doc. 34, p. 3. As the defense
notes, the deadline for filing a reply brief in this matter
was unambiguous. See docs. 18, 19. Under these
deadlines, the reply memorandum was due within ten days after
filing of the response, fixing such deadline at Monday,
August 7, 2017, after the response was filed on July 27,
2017, because the ten-day limit ended on a Sunday. Docs. 19,
24; see Fed. R. Civ. P. 6(a). The plaintiff's
reply was submitted on August 9, 2017, the same day that this
court issued its order denying the motion to compel.
motion to reconsider is not available to allow plaintiff to
avoid the ramifications of missing a deadline. Even if we had
considered her opposition, however, the Motion to Compel
would have nonetheless be denied as defendants replied that
they did not possess the information sought and offered
instead the complained-of time sheets which, admittedly, were
not responsive to the information sought. We cannot compel
production of something defendants do not have. To the extent
that plaintiff seeks an affirmative statement that there are
no time sheets in order to support a claim of records-keeping
violations under 29 U.S.C. § 211(c), plaintiff may rely
on the statements offered by defendants in their response to
the motion to compel.
as plaintiff is granted no relief on the Motion to Compel,
neither is she entitled to sanctions. We also note, however,
that her claim for sanctions under Rule 37(b) would have been
denied, even had her Motion to Compel been granted, as Rule
37(b) allows for sanctions when a party fails to obey
discovery orders. See Fed. R. Civ. P. ...