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Brothers Petroleum, LLC v. Wagners Chef, LLC

United States District Court, E.D. Louisiana

October 15, 2018

BROTHERS PETROLEUM, LLC
v.
WAGNERS CHEF, LLC, ET AL.

         SECTION: “J” (1)

          ORDER AND REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE.

         Before 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.

         FACTS AND PROCEDURAL HISTORY

         This 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.

         PLAINTIFF'S ARGUMENTS

         Plaintiff 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 Express.

         LEGAL STANDARD

         The 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).

         The 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. Fed.R.Civ.P. 54(b).

         Nonetheless, 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'”) (citations omitted).

         The 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 discovered evidence”).

         DISCUSSION

         Plaintiff 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 ...


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