United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Reconsideration
(Rec. Doc. 47) filed by Plaintiff, Brothers
Petroleum, LLC. Having considered the Motion and legal
memoranda, the record, and the applicable law, the Court
finds that the Motion should be DENIED.
AND PROCEDURAL HISTORY
Court described the facts of this case at length in its order
and reasons issued on July 31, 2018. (Rec. Doc. 46). In that
order, this Court granted summary judgment in favor of all
defendants other than Wagners Chef, LLC, Jadallah,
Enterprises, LLC, and Ahmed 1, LLC and also on some of the
claims alleged against the Defendants who remain party to
this action. Plaintiff filed its Motion on August 20, 2018.
LNV Corporation and Wagner World, LLC filed opposition, to
which Brothers filed a reply. LNV responded with a sur-reply.
moves this Court to reconsider its order pursuant to Rule 59
of the Federal Rules of Civil Procedure. Movant argues
reconsideration is necessary to “correct a manifest
error of law and facts and in order to prevent manifest
injustice.” (Rec. Doc. 47). Specifically, Plaintiff
alleges first that this Court was manifestly wrong in its
finding that FIRREA deprives this Court of jurisdiction to
grant equitable relief, because statutory provisions allow
this Court to retain jurisdiction over pre-receivership
claims as opposed to post-receivership claims. Second,
Plaintiff argues the revocatory action against Empire
Express, LLC, should be maintained because that sale
“does not form a part of the transactions involving the
now-defunct First NBC Bank.” (Rec. Doc. 47-1 at 12).
Third, Plaintiff urges that it has successfully alleged
unfair trade practices claims against Wagner World and Empire
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. As Plaintiff has brought its claim within 28 days of
this Court's order granting summary judgment, Plaintiff
argues that Rule 59 is applicable. “However, an order
dismissing fewer than all of the claims in a complaint is an
interlocutory order.” Namer v. Scottsdale Ins.
Co., 314 F.R.D. 392, 393 (E.D. La. 2016). This
Court's order did not grant summary judgment on the
unfair trade practices claims alleged against three of the
defendants. Thus, there has been no final judgment in this
case. Interlocutory orders should be amended pursuant to Rule
54(b), at any time before entry of a final judgment.
this distinction is not material here, because “[t]he
general practice of courts in this district has been to
evaluate motions to reconsider interlocutory orders under the
same standards that govern Rule 59(e) motions to alter or
amend a final judgment.” Namer, 314 F.R.D. at
393. Altering 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. Dep't of Health & Hosp., 2009 WL 2046766, at
*4 (E.D. La. July 14, 2009) (manifest error is one that
“‘is plain and indisputable, and that amounts to
a complete disregard of the controlling law'”)
Fifth Circuit has noted that “such a motion is not the
proper vehicle for rehashing evidence, legal theories, or
arguments that could have been offered or raised before entry
of judgment.” Templet, 367 F.3d at 478-79. Nor
should it be used to “re-litigate prior matters that .
. . simply have been resolved to the movant's
dissatisfaction.” Voisin v. Tetra Techs.,
Inc., No. 08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct.
6, 2010). Thus, to prevail on a motion under Rule 59(e), the
movant must clearly establish at least one of three factors:
(1) an intervening change in the controlling law, (2) the
availability of new evidence not previously available, or (3)
a manifest error in law or fact. Ross v. Marshall,
426 F.3d 745, 763 (5th Cir. 2005) (finding that to win a Rule
59(e) motion, the movant “must clearly establish either
a manifest error of law or fact or must present newly
does not present new evidence and has not argued there has
been an intervening change in the controlling law. Thus, this
Court will grant Plaintiff's Motion only if the Court
finds that it has ...