United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court is a Motion for Reconsideration (Rec. Doc.
19) filed by Plaintiff James Stewart. Defendant City
of Hammond, Louisiana opposes the motion (Rec. Doc. 20). The
motion, set for submission on July 24, 2019, is before the
Court on the briefs. Having considered the motion and
memoranda of counsel, the record, and the applicable law, the
Court finds that Plaintiff's motion should be
GRANTED in so far as the Court reconsiders
the grounds for dismissal. The Court finds that
Plaintiff's federal constitutional claims remain
DISMISSED upon other grounds as set forth
below. The above captioned matter is
REMANDED to the state Court from which the
matter was removed to determine any remaining state law
was employed as Hammond's chief of police. (Rec. Doc. 1-1
Petition, ¶ II). On January 3, 2019, the Mayor of
Hammond, Pete Panepinto, terminated Plaintiff's
employment. (Id. at IX). Plaintiff filed suit in the
Twenty-first Judicial District Court in Tangipahoa Parish
alleging wrongful termination in violation of Plaintiff's
constitutional rights citing the Hammond City Charter
(“the Charter”), applicable Hammond Code of
Ordinances, the Louisiana statutory Police Officer's Bill
of Rights, and the Hammond Police Department's General
Orders. (Id. at XVIII). On March 18, 2019, Defendant
removed the matter to this Court pursuant to 28 U.S.C. §
1331, subject matter jurisdiction based on 42 U.S.C. §
1983 allegations contained in the state court petition. (Rec.
Doc. 1, p. 3).
filed a motion to dismiss all of Plaintiff's claims for
failure to state a claim upon which relief can be granted.
(Rec. Doc. 10). On June 25, 2019, this Court granted the
motion to dismiss for failure to comply with Louisiana Rev.
Stat. 33:2501(A) and the appeals process therein. (Rec. Doc.
16). By bringing this motion, Plaintiff requests this Court
to reconsider its order as an error of law or fact.
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).
Order and Reasons, the Court found that Louisiana statutory
law specifically identifies the chief of the police
department as a classified service. (Rec. Doc. 16, p. 4).
Based upon the plain statutory language, the Court concluded
that Plaintiff may demand a hearing and investigation by the
board to determine the reasonableness of the action.
(Id. at 5). Considering that Plaintiff failed to
engage in said appeals process, the Court found that the
state court Petition failed to state a claim upon which
relief may be granted and dismissed the case. (Id.).
asserts, and the Court agrees, that the Court failed to
recognize an express statutory exception to the general rule
relied upon by the Court. (Rec. Doc. 19-1, p. 1). Louisiana
Rev. Stat. 33:2481 articulates that the chief of police
specifically for the City of Hammond is an unclassified
employee. La.R.S. 33:2481(B)(6). The appeal review process to
the board is reserved only for “[a]ny regular employee
in the classified service.” La.R.S. 33:2501. In light
of the fact that Plaintiff was the chief of police of the
City of Hammond, as opposed to any other chief of police in
Louisiana, the Court will reconsider its analysis of
Defendant's motion to dismiss. The Court notes that
although the Court is reviewing the motion to dismiss, the
motion for reconsideration is only granted in so far as the
Court's reasons for dismissal. The Court finds that it
still lacks jurisdiction, and dismissal of Plaintiff's
federal claims is appropriate.
central issue in a Rule 12(b)(6) motion to dismiss is
whether, in the light most favorable to the plaintiff, the
complaint states a valid claim for relief. Gentilello v.
Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe
v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)). To
avoid dismissal, a plaintiff must plead sufficient facts to
“state a claim for relief that is plausible on its
face.” Id. (quoting Iqbal, 129 S.Ct.
at 1949). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The Court
does not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.”
Id. (quoting Plotkin v. IP Axess, Inc., 407
F.3d 690, 696 (5th Cir. 2005)). Legal conclusions must be
supported by factual allegations. Id. (quoting
Iqbal, 129 S.Ct. at 1950).
context of a motion to dismiss the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232
(5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308 (2007); Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Lovick v.
Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)).
However, the foregoing tenet is inapplicable to legal
conclusions. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009). Thread-bare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice. Id. (citing Bell Atlantic Corp. v.
Twombly, 550, U.S. 544, 555 (2007)).
previously cited in the Court's Order and Reasons (Rec.
Doc. 16), ...