United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
light of the government re-opening, the Court lifts the stay
on the Motion for Reconsideration (Rec. Doc. 27). Now before
the Court is a Rule 59 Motion for Rehearing, New Trial,
and/or Reconsideration (Rec. Doc. 27) filed by Plaintiff,
Monique Riley. Defendant, The United States of America
(“the Government”) opposes the motion (Rec. Doc.
28). The motion, set for submission on December 12, 2018, is
before the Court on the briefs without oral argument. Having
considered the motion and memoranda of counsel, the record,
and the applicable law, the Court finds that Plaintiff's
Rule 59 Motion for Rehearing, New Trial, and/or
Reconsideration (Rec. Doc. 27) is DENIED for the reasons set
September 18, 2015, Plaintiff visited the St. John Veterans
Affairs Outpatient Clinic (“VA”) for a check-up.
(Rec. Doc. 1, Complaint ¶ 13). Plaintiff had recently
undergone a left ankle reconstruction requiring a left ankle
and foot cast and crutches. (Id., ¶ 14). During
her visit, Plaintiff had to provide a urine sample for a
routine analysis. (Id., ¶ 16). A VA lab tech
indicated that the custodian had just mopped the nearby
restroom and suggested that Plaintiff use an alternative
restroom. (Id.). The custodian interjected that the
floor in the nearby restroom was in fact dry and ready to
use. (Id. ¶ 17). Plaintiff used the nearby
restroom, and after washing her hands, her crutch slipped and
she fell. (Id. ¶ 21). Once on the floor,
Plaintiff noticed there were water streaks on the floor
allegedly from the mop. (Id. ¶ 22).
required by 28 U.S.C. § 2671, as a prerequisite to
filing suit in federal court under the Federal Tort Claims
Act (“FTCA”), Plaintiff filed an administrative
claim on March 17, 2017, which was denied by the VA on August
31, 2017. Thereafter, Plaintiff filed the instant lawsuit
pursuant to the FTCA, 28 U.S.C.A. §§ 1346(b); 2671,
et seq. (Id., ¶ 5). Plaintiff alleged that the
employees of the Government were acting within the scope of
their employment with the VA. Thus, the Government is liable
under the doctrine of respondeat superior under
federal and Louisiana law and liable for failure to supervise
and train all employees, contractors, and volunteers. (Rec.
Doc. 24, ¶ 30).
October 24, 2018, the Court granted Defendant's Motion to
Dismiss (Rec. Doc. 14). The Court found that Lionel Campbell
was the custodian who informed Plaintiff the restroom was
ready for use. As a participant in the Compensated Work
Therapy (“CWT”) program, the Court held that the
waiver of sovereign immunity pursuant to the Federal Tort
Claims Act did not apply because Campbell was not an
“employee of the government.” (Rec. Doc. 26). The
Plaintiff files the instant motion to reconsider the case
pursuant to Rule 59 of the Federal Rules of Civil Procedure.
Federal Rules of Civil Procedure do not recognize a motion
for reconsideration. Bass v. United States Dep't of
Agric., 211 F.3d 959, 962 (5th Cir. 2000). Nevertheless,
the Fifth Circuit has treated a motion for reconsideration as
a motion to alter or amend judgment pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure when filed twenty-eight
days after entry of the judgment from which relief is being
sought. Hamilton Plaintiffs v. Williams Plaintiffs,
147 F.3d 367, 371 n.10 (5th Cir. 1998); see also Fed.R.Civ.P.
59(e). A Rule 59(e) motion may be granted on four grounds:
“(1) to correct manifest errors of law or fact upon
which judgment is based, (2) the availability of new
evidence, (3) the need to prevent manifest injustice, or (4)
an intervening change in controlling law.” Lines v.
Fairfield Ins. Co., No. 08-1045, 2010 WL 4338636, at *1
(E.D. La. Oct. 21, 2010) (citing Peterson v. Cigna Group
Ins., No. 99-2112, 2002 WL 1268404, at *2 (E.D. La. June
5, 2002)). “The Court enjoys considerable discretion in
granting or denying such a motion.” Gabarick v.
Laurin Mar. (America) Inc., No. 08-4007, 2010 WL
5437391, at *5 (E.D. La. Dec. 23, 2010) (citing
Boyd's Bit Serv., Inc. v. Specialty Rental Tool &
Supply, Inc., 332 F.Supp.2d 938, 939 (W.D. La 2004)).
The Fifth Circuit has held that a Rule 59(e) motion is not
the proper vehicle for “rehashing evidence, legal
theories, or arguments that could have been offered or raised
before the entry of judgment.” Templet v. HydroChem
Inc., 367 F.3d 473, 479 (5th Cir. April 2004).
Law and Analysis
brings the instant motion to correct manifest errors of law
and fact upon which the judgment (Rec. Doc. 26) is based and
to prevent manifest injustice. (Rec. Doc. 27, p. 1).
Plaintiff contends that this Court failed to address the
issue of the “discretionary function exceptions”
to the FTCA and failed to recognize that Plaintiff has openly
and expressly alleged that the Government was negligent in
the supervision of Campbell. (Id. at 2). Plaintiff
asserts that the Government failed to address the negligent
supervision claims. (Id. at 4). Specifically,
Plaintiff asserts that (1) negligent supervision claims are
cognizable under the FTCA, (2) the Court failed to consider
the pleadings in the absence of evidence regarding the
negligent supervision, and (3) the Government failed to meet
its burden of establishing the discretionary function
exception applies to this case. The Government responds that
it specifically addressed the negligent supervision claim by
arguing that the discretionary function exception applied to
individuals such as Campbell. (Rec. Doc. 28, p. 2). The
Government asserts that Plaintiff did not offer an opposition
addressing these arguments, and Rule 59 motions may not raise
new arguments. (Id. at 3).
motion to dismiss, the Government did present arguments
regarding Plaintiff's allegations of negligent failure to
train and supervise. (Rec. Doc. 14, p. 8). The Government
asserted, “allegations of alleged negligent failure to
train are routinely barred by the discretionary function
exception.” (Id.). Plaintiff responded by
asserting that the VA establishing the program was
discretionary in nature and that Plaintiff is not complaining
that her injury is the result of the VA establishing the CWT
program. (Rec. Doc. 15, p. 9). In its reply, the Government
stated that Plaintiff offered no opposition to the argument
that her claims for negligent training and negligent
supervision must be dismissed under the discretionary
function exception of the FTCA. (Rec. Doc. 18, p. 2).
opposition identified numerous arguments regarding how the
Government should be vicariously liable for the CWT worker as
an employee but provided no arguments on the issue of
negligent training and supervision. Plaintiff did submit the
“Standard Operating Procedures” for mopping in
the clinic and identified Arlen Duplessis as the VA employee
housekeeping supervisor; however, these arguments were
presented to establish a right of control under the claim of
vicarious liability for Campbell, not negligent training and
supervision. Plaintiff did not present any argument regarding
any employee of the VA who acted negligently in their
training and supervision of Campbell. Plaintiff also did not
address in her opposition how her claims for negligent
supervision were outside the scope of the discretionary
function exception. The Court finds that a motion for
reconsideration is not the proper vehicle to present new
though the Court sympathizes with Plaintiff, the Court
unfortunately finds that Plaintiff's claims of the
negligent supervision and training of Campbell are meritless.
Plaintiff relies on Bodin v, Vagshenian, 462 F.3d
481, 489 (5th Cir. 2006) to assert that the United States can
be held liable under the FTCA independent of an employment
relationship with the tortfeasor. (Rec. Doc. 27, p. 5).
Specifically, Plaintiff asserts that the FTCA waives
sovereign immunity in situations where the ...