United States District Court, E.D. Louisiana
AMANDA FISHER, ET AL.
UNITED STATES OF AMERICA, ET AL.
ORDER & REASONS
W. ASHE UNITED STATES DISTRICT JUDGE.
the Court is plaintiffs' motion under Rule 59(e) of the
Federal Rules of Civil Procedure for
reconsideration of this Court's January 23, 2019 Order
& Reasons dismissing this action. Defendant the United States
of America (“the USA”) responds in opposition to
the motion,  and plaintiffs Amanda and Christopher
Fisher (“the Fishers”) reply in further
support.Having considered the applicable law and
the parties' memoranda, the Court issues this Order &
Reasons denying the Fishers' motion for reconsideration.
BACKGROUND & PENDING MOTION
Fishers filed this action against the USA seeking damages for
injuries that Amanda Fisher allegedly sustained while hiking
on the Plantation Trail in Jean Lafitte National Park in
Marrero, Louisiana. The Fishers alleged that the USA was
negligent in maintaining the park and in failing to close the
trail on the day of the accident due to muddy
conditions. They also alleged that the USA, as the
custodian of the park, was liable for the ruin, vice, or
defect in the park.
filed a motion to dismiss arguing that this Court lacked
subject-matter jurisdiction over the Fishers' claims
because the federal government has not waived its sovereign
immunity with respect to the types of claims raised in the
complaint. Specifically, the USA argued that the
Federal Tort Claims Act (“FTCA”), which is a
limited waiver of sovereign immunity, limits the
government's tort liability to the same extent as private
individuals under like circumstances pursuant to the law of
the state where the alleged tortious action
occurred.Louisiana's recreational use statutes,
La. R.S. 9:2791 and 2795, relieve a premises owner from
liability for injuries on its land when it allows others to
use its land free of charge for activities, such as hiking,
unless the owner willfully or maliciously fails to warn
against a known danger.
the USA filed its motion to dismiss, the Fishers moved for
leave to file an amended complaint seeking to overcome the
defenses provided in Louisiana's recreational use
statutes by alleging that the USA willfully failed to warn
them of dangerous conditions at the park. On December
12, 2018, the Fishers' motion for leave was heard by the
United States Magistrate Judge. Before the Magistrate
Judge issued an order on the motion for leave to amend, the
Fishers filed a motion for leave to file a second amended
complaint, similarly attempting to correct the jurisdictional
defects of the original complaint. Because the motion for
leave to file a second amended complaint was unopposed, this
Court granted the motion and the second amended complaint was
filed into the record.
December 28, 2018, the Magistrate Judge issued an order
denying the Fishers' motion for leave to file the first
amended complaint, finding that the proposed amendment was
“futile and fail[ed] to state a claim for which relief
may be granted.” The Magistrate Judge found that the
additional allegations did not greatly differ from those of
the original complaint, except “to add legal
terminology designed to address the problem created by the
state law that [failure to warn] must be willful and not
negligence, ” nor did the amended complaint allege any
facts “setting forth the alleged willful
light of the Magistrate Judge's findings, this Court
determined that it had no subject-matter jurisdiction over
the original complaint. As a result, on January 23, 2019,
without subject-matter jurisdiction over the original
complaint and seeing no new allegations in the second amended
complaint to resolve the jurisdictional deficiencies found by
the Magistrate Judge, this Court concluded that it did not
have the authority to permit the filing of the second amended
complaint and dismissed this action without
prejudice. On March 18, 2018, the Fishers filed a
new action in an effort to preserve their
Fishers now ask this Court to reconsider its order dismissing
this action. The Fishers argue that the allegations
in their original complaint were sufficient to confer
subject-matter jurisdiction. In effect, the Fishers reargue
the same position they argued before the Magistrate Judge on
their motion for leave to file the first amended
complaint. The Fishers further argue that this
Court has the authority to permit amendment to remedy
jurisdictional defects, that the second amended complaint
contains new allegations of a failure to warn about known
dangers, including testimony from a former park employee, and
that dismissal without permitting equitable tolling for a new
lawsuit would result in manifest injustice as the
prescriptive period has expired. The USA opposes the
motion arguing that the Fishers do not offer new arguments,
or demonstrate a change in law or manifest injustice, but
notes that federal courts do have authority to permit
amendments to correct defective jurisdictional
Federal Rules of Civil Procedure do not formally recognize a
motion for reconsideration. Bass v. United States
Dep't of Agric., 211 F.3d 959, 962 (5th Cir. 2000).
The Fifth Circuit has treated a motion for reconsideration as
a motion to alter or amend the judgment pursuant to Rule
59(e) of the Federal Rules of Civil Procedure when filed
within the time limit set by the Rule. See Shepherd v.
Int'l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir.
2004). A party must file a motion to alter or amend within 28
days of the entry of the judgment from which relief is
sought. Here, the Fishers filed their motion for
reconsideration within this period. Thus, the Court evaluates
the motion under Rule 59(e).
59(e) motion calls into question the correctness of a
judgment. In re Transtexas Gas Corp., 303 F.3d 571,
581 (5th Cir. 2002). “Rule 59(e) is properly invoked to
correct manifest errors of law or fact or to present newly
discovered evidence.” Id. at 581. “A
Rule 59(e) motion should not be used to relitigate prior
matters that should have been urged earlier or that simply
have been resolved to the movant's
dissatisfaction.” In re Self, 172 F.Supp.2d
813, 816 (W.D. La. 2001). The grant of such a motion is an
“extraordinary remedy that should be used
sparingly.” Indep. Coca-Cola Employees' Union
of Lake Charles, No. 1060 v. Coca-Cola Bottling Co. United,
Inc., 114 Fed.Appx. 137, 143 (5th Cir. 2004) (citation
omitted). A district court has considerable discretion to
grant or deny a Rule 59(e) motion for reconsideration.
Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353
(5th Cir. 1990).
Court finds no grounds to reconsider its order dismissing
this action. The Magistrate Judge concluded that this Court
lacked subject-matter jurisdiction over the original
complaint and the proposed amended complaint was futile to
confer subject-matter jurisdiction.The Fishers did not appeal
the Magistrate Judge's order. Based on the Magistrate
Judge's findings that the court lacked subject-matter
jurisdiction over the original complaint, this Court
previously determined that “never having had power to
act in the matter, the court never had authority to permit an
amendment to the complaint.” Whitmire v. Victus
Ltd., 212 F.3d 885, 888 (5th Cir. 2000) (quotation and
citation omitted). Although federal courts may allow
amendment where justice so requires, see Fed. R.
Civ. P. 15(a)(2), here, the Fishers offer no new facts or
factual allegations to correct the deficiencies in the
jurisdictional facts found by the Magistrate Judge.
“The existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint is
filed.” Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 830 (1989) (quoting Smith v. Sperling,
354 U.S. 91, 93 n.1 (1957)). “While a district court
can ‘remedy inadequate jurisdictional allegations,'
it cannot remedy ‘defective jurisdictional facts.'
Whitmire, 212 F.3d at 888 (quoting
Newman-Green, 490 U.S. at 832 n.5 (citing, inter
alia, Pressroom Unions-Printers League Income Sec.
Fund v. Cont'l Assurance Co., 700 F.2d 889, 893 (2d
Cir. 1983); Aetna Cas. & Sur. Co. v. ...