United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court are plaintiff Andrew Gressett's motions to: (1)
alter or amend the Court's judgment dismissing his claims
and denying leave to amend his complaint, and (2) set aside
the Magistrate Judge's order denying plaintiff's
request for subpoenas. Because Gressett has failed to
establish either a manifest error or present newly discovered
evidence, the Court denies his motion to alter or amend the
judgment. Because the Magistrate Judge's order was not
clearly erroneous or contrary to law, the Court denies his
motion to set aside the Magistrate Judge's order.
case arises out of alleged constitutional violations by a New
Orleans Police Department (NOPD) officer. Plaintiff alleges
that, on November 11, 2016, an unidentified NOPD officer made
“anti-Trump” and “pro-Black”
statements, including that, “[a]nyone that voted for
Donald Trump is a racist, ” at a Waffle House in New
Orleans. Plaintiff further alleges that, on
December 14, 2016, he was leaving the same Waffle House in
New Orleans when he noticed the same unidentified officer
“lying in wait” outside of the restaurant,
standing between plaintiff and his vehicle. The unidentified
officer was allegedly standing with one hand on his holstered
revolver and the other on his holstered Taser. Plaintiff alleges
that he stepped aside in an attempt to avoid the officer, but
that the officer stepped into his path and said,
“[y]ou're still being an
[a]sshole.” Plaintiff alleges he felt threatened and
detained by the officer, but proceeded to his vehicle without
brought suit against the City of New Orleans, the
unidentified officer, and other unidentified law enforcement
officers on December 11, 2017. The complaint asserts claims for
violations of “federal civil rights statutes” and
for negligence. On March 26, 2018, the City moved to
dismiss the complaint under Federal Rules of Civil Procedure
12(b)(1), 12(b)(5), and 12(b)(6). Before responding to the
City's motion to dismiss, plaintiff sought leave to amend
his complaint. The Magistrate Judge denied this motion on
May 2, 2018. On August 1, 2018, the Court granted the
City's motion to dismiss and affirmed the Magistrate
Judge's decision denying leave to amend. It therefore
dismissed plaintiff's complaint with
August 24, 2018, plaintiff filed a motion seeking issuance of
a subpoena, which the Magistrate Judge denied because
plaintiff's case had already been
dismissed. Plaintiff now seeks review of the
Magistrate Judge's denial of the subpoena,  and he also
seeks review under Federal Rule of Civil Procedure 59 of the
Court's order dismissing his case and denying leave to
amend. The City opposes the
Motion to Alter or Amend the Judgment
seeking review of a previous order disposing of the case are
treated as Rule 59(e) motions to alter or amend the judgment.
See Ford Motor Credit Co. v. Bright, 34 F.3d 322,
324 (5th Cir. 1994). A district court has considerable
discretion to grant or deny a motion under Federal Rule of
Civil Procedure 59(e). See Edward H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). The Court
must “strike the proper balance between two competing
imperatives: (1) finality, and (2) the need to render just
decisions on the basis of all the facts.” Id.
Reconsideration, however, “is an extraordinary remedy
that should be used sparingly.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004);
see also Fields v. Pool Offshore, Inc., No. 97-3170,
1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998),
aff'd, 182 F.3d 353 (5th Cir. 1999).
succeed on a Rule 59(e) motion, therefore, a party must
“clearly establish either a manifest error of law or
fact or must present newly discovered evidence.”
Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005).
Rule 59(e) motions are “not the proper vehicle for
rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of
judgment.” Templet, 367 F.3d at 478-79.
“A motion to reconsider based on an alleged discovery
of new evidence should be granted only if (1) the facts
discovered are of such a nature that they would probably
change the outcome; (2) the facts alleged are actually newly
discovered and could not have been discovered earlier by
proper diligence; and (3) the facts are not merely cumulative
or impeaching.” Ferraro v. Liberty Mut. Fire Ins.
Co., 796 F.3d 529, 534 (5th Cir. 2015) (quoting
Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d
673, 677 (5th Cir. 2010)).
Court has reviewed Gressett's motions for reconsideration
and finds that they do not demonstrate a manifest error of
law or fact, nor do they present newly discovered evidence.
To the contrary, they merely rehash the legal arguments
considered in the Court's order on the defendants'
motion to dismiss. The documents he cites as new evidence
were either available to Gressett when he responded to
defendants' motion to dismiss and sought to amend his
complaint, or they contain no information relevant to the
disposition of his claims. Gressett's motions for
reconsideration are therefore denied.
Motion to Set Aside Magistrate Judge's Order
magistrate judge's ruling on a non-dispositive civil
motion may be appealed to the district court. Fed.R.Civ.P.
72(a). When a timely objection is raised, the district judge
must review the magistrate judge's ruling and
“modify or set aside any part of the order that is
clearly erroneous or contrary to law.” Id. The
court reviews the magistrate judge's
“‘factual findings under a clearly erroneous
standard,' while ‘legal conclusions are reviewed
de novo.'” Moore v. Ford Motor
Co., 755 F.3d 802, 806 (5th Cir. 2014) (quoting
Alldread v. City of Grenada, 988 F.2d 1425, 1434
(5th Cir. 1993)). A factual finding is clearly erroneous when
“although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948). A legal conclusion is contrary to
law “when the magistrate fails to apply or misapplies
relevant statutes, case law, or rules of procedure.”
Ambrose-Frazier v. Herzing Inc., No. 15-1324, 2016