United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
the Court is a Motion to Reconsider the Court's Order
Granting Defendant's Motion for Summary Judgment
(Rec. Doc. 59) filed by Plaintiff, Earl
Thompson. Having considered the motion and legal memoranda,
the record, and the applicable law, the Court finds that the
motion should be GRANTED.
AND PROCEDURAL HISTORY
litigation derives from Plaintiff's allegation that he
was subjected to discrimination on the basis of his race
(African American), sex (male), age (date of birth 12/26/50),
and retaliation in the workplace in violation of Title VII of
the Civil Rights Act and the Age Discrimination in Employment
Act of 1967. (See Rec. Doc. 1). Specifically,
Plaintiff alleges that he was discriminated against when he
applied for a GS-09 Petroleum Engineering Technician position
in September of 2015, but a Caucasian female with less
seniority, expertise, and experience was selected for the
position. (See Rec. Doc. 1, at 18).
21, 2018, Defendant filed a motion for summary judgment with
a submission date of June 6, 2018. (Rec. Doc. 47). One day
before Plaintiff's deadline to submit an opposition to
Defendant's motion, Plaintiff sought and this Court
granted a motion extending the submission date to June 8,
2018. (Rec. Doc. 53). Nevertheless, Plaintiff failed to
timely file an opposition. On June 11, 2018, this Court
granted Defendant's motion for summary judgment,
dismissing Plaintiff's claims without
prejudice. (Rec. Doc. 54). Thereafter, Plaintiff
filed a Motion for Leave to File Plaintiff's
Memorandum in Opposition to Defendant's Motion to Dismiss
and Motion for Summary Judgment Out of Time (Rec. Doc.
55), which this Court denied (Rec. Doc. 56).
28, 2018, Plaintiff filed the instant Motion to
Reconsider the Court's Order Granting Defendant's
Motion for Summary Judgment (Rec. Doc. 59), which
Defendant opposes (Rec. Doc. 60).
moves this Court to reconsider its June 11, 2018 Order
granting Defendant's motion for summary judgment on the
basis that Plaintiff's failure to timely file its
opposition constituted “excusable neglect” under
Rule 60(b)(1). (See Rec. Doc. 59-1, at 3).
Specifically, Plaintiff alleges that the failure to timely
file an opposition was due to the death of counsel's aunt
on June 9, 2018 and the “relatively recent loss”
of several other family members. (See Rec. Doc.
59-1, at 3). Plaintiff's counsel alleges that he
“has had grave difficulty focusing on this and other
assignments.” (See Rec. Doc. 59-1, at 3).
Plaintiff asserts that Defendant would not be prejudiced if
this Court granted Plaintiff's motion to reconsider and
allowed Plaintiff's memorandum in opposition to
Defendant's motion for summary judgment to be considered
on the record. (See Rec. Doc. 59-1, at 3).
argues in response that the Court should deny Plaintiff's
motion to reconsider because Plaintiff's failure to
timely file his opposition amounts to non-action and
carelessness as opposed to excusable neglect. (See
Rec. Doc. 60, at 2). Defendant notes that the Fifth Circuit
has many times upheld the denial of a Rule 60(b) motion due
to an attorney's failure to adhere to court deadlines.
(See Rec. Doc. 60, at 3).
Federal Rules of Civil Procedure do not expressly allow
motions for reconsideration of an order. Bass v. U.S.
Dep't of Agric., 211 F.3d 959, 962 (5th Cir. 2000).
The Fifth Circuit treats a motion for reconsideration
challenging a prior judgment as either a motion “to
alter or amend” under Federal Rule of Civil Procedure
59(e) or a motion for “relief from judgment”
under Federal Rule of Civil Procedure 60(b). 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, 1076 (5th Cir. 1994).
difference in treatment is based on timing. If the motion is
filed within twenty-eight days of the judgment, then it falls
under Rule 59(e). FED. R. CIV. P. 59(e); Lavespere,
910 F.2d at 173. However, if the motion is filed more than
twenty-eight days after the judgment, but not more than one
year after the entry of judgment, it is governed by Rule
60(b). FED. R. CIV. P. 60(c); Lavespere, 910 F.2d at
173. In the present case, Plaintiff's Motion for
Reconsideration (Rec. Doc. 59) was filed within
twenty-eight days of the issuance of the Court's order
(Rec. Doc. 54). Accordingly, Plaintiff's Motion for
Reconsideration is treated as a motion to alter or amend
under Rule 59(e).
or amending a judgment under Rule 59(e) is an
“extraordinary remedy” used
“sparingly” by the courts. Templet v.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A
motion to alter or amend calls into question the correctness
of a judgment and is permitted only in narrow situations,
“primarily to correct manifest errors of law or fact or
to present newly discovered evidence.” Id.;
see also Schiller v. Physicians Res. Grp. Inc., 342
F.3d 563, 567 (5th Cir. 2003). Manifest error is defined as
“[e]vident to the senses, especially to the sight,
obvious to the understanding, evident to the mind, not
obscure or hidden, and is synonymous with open, clear,
visible, unmistakable, indubitable, indisputable, evidence,
and self-evidence.” In Re Energy Partners,
Ltd., 2009 WL 2970393, at *6 (Bankr.S.D.Tex. Sept. 15,
2009) (citations omitted); see also Pechon v. La.