United States District Court, W.D. Louisiana, Lake Charles Division
BOBBY GREEN, SR.; as administrator of the estate of KAYLA M. GREEN
KROGER CO., ET AL.
D. CAIN, JR. UNITED STATES DISTRICT JUDGE.
the court is a Motion for Reconsideration [doc. 33] filed
under Federal Rules of Civil Procedure 60(b)(1) and (6) by
plaintiff Bobby Green, Sr. Mr. Green requests that the court
reverse its Memorandum Ruling and Judgment of July 8, 2019,
granting summary judgment to defendant Kroger Company
("Kroger") for the suit he maintained under the
Louisiana Merchant Liability Act ("LMLA"),
Louisiana Revised Statute § 9:2800.6, on behalf of
decedent Kayla M. Green. See docs. 31, 32. The suit
related to injuries that Ms. Green sustained after slipping
in liquid in an aisle at a Kroger store. Kroger opposes the
motion. Doc. 35.
court granted summary judgment after finding that Mr. Green
could not support an essential element of his claim under the
LMLA - that the merchant either created or had actual or
constructive notice of the hazardous condition - because
there was no evidence of how long the liquid had been in the
aisle, what the source of the spill was, or whether any
employee had observed the condition before Ms. Green's
fall. Doc. 31, pp. 3-4. The court also rejected Mr.
Green's assertion of spoliation, based on his allegations
that Kroger had offered inconsistent responses on the
existence of video evidence relating to the accident.
Id. at 4-5. As the undersigned noted, plaintiff
failed to show any such statements and so there was no basis
for presuming that favorable evidence was withheld.
Green now moves for reconsideration, alleging that the
court's ruling was in error because (1) the defendant
failed to fully respond to his request for production of
video evidence and (2) he disputes what the existing evidence
shows as to the liquid in the aisle, and maintains that
further evidence could have revealed enough to carry his
burden under the LMLA. Doc. 33.
urges that, because this motion was filed within the time for
seeking relief under Rule 59(e), it should be considered
under that rule. Doc. 35, pp. 2-3. Rule 59(e) allows the
court to alter or amend a judgment. A motion under this rule
must be filed within 28 days of entry of judgment.
"[C]ourts typically determine the appropriate motion
based on whether the litigant filed the motion within Rule
59(e)'s time limit." Williams v. Thaler,
602 F.3d 291, 303 (5th Cir. 2010). Because Green has
presented his arguments under Rule 60(b), however, the court
will evaluate the motion under both rules to determine if
either offers a basis for relief.
60(b) provides several grounds for granting relief from a
final judgment, order, or proceeding, including
"mistake, inadvertence, surprise, or excusable
neglect" and "any other reason that justifies
relief." Fed.R.Civ.P. 60(b)(1) & (6). The district
court may use Rule 60(b)(1) to correct its own mistake,
"but only to rectify an obvious error of law, apparent
on the record." Hill v. McDermott, Inc., 827
F.2d 1040, 1043 (5th Cir. 1987). Otherwise, it should not
substitute for "the ordinary method of redressing
judicial error- appeal." Chick Kam Choo v. Exxon
Corp., 699 F.2d 693, 696 (5th Cir. 1983). Rule 60(b)(6)
is "commonly referred to as a * grand reservoir of
equitable power to do justice,' [but] is only invoked in
'extraordinary circumstances.'" Rocha v.
Thaler, 619 F.3d 387, 400 (5th Cir. 2010). Meanwhile,
relief under Rule 59(e) is appropriate (1) where there has
been an intervening change in controlling law; (2) where the
movant presents newly discovered and previously unavailable
evidence; or (3) "to correct a manifest error of law or
fact." Schiller v. Physicians Res. Grp. Inc.,
342 F.3d 563, 567 (5th Cir. 2003). Only the final basis is
potentially relevant here. Like Rule 60, Rule 59(e) provides
an extraordinary remedy that should be used sparingly.
Templet v. Hydrochem Inc., 367 F.3d 473, 479 (5th
Cir. 2004). It should not be used to urge arguments
"which could, and should, have been made before the
judgment [issued]." Rosenszweig v. Azurix
Corp., 332 F.3d 854, 863-64 (5th Cir. 2003) (internal
Green shows Kroger was only partially responsive to his
request for production of video evidence, answering his
request for "video/audio of the incident of March 12,
2017 and any and all videos of the store at the time of the
incident" with "There is no video footage of the
alleged accident." Doc. 33, att. 3. He also disputes the
court's determination as to the amount of water in the
aisle based on the photographs he submitted. Finally, he
complains that ambulance attendants, who recorded that Ms.
Green was "lying on floor in store in spilled
water" when they arrived, "were not deposed because
it could not be accomplished once the motion for summary
judgment was pressed." Doc. 33, att. 1, p. 2;
see doc. 23, att. 6, p. 6 (Acadian Ambulance
Green did not file a motion to compel based on Kroger's
discovery responses or move to delay summary judgment under
Rule 56(d) based on unavailability of evidence. Kroger's
partial response to the request for production is
insufficient to show that it has withheld any relevant
evidence in this matter. The court reviewed the photographs
and other records on which plaintiff relied, and found that
they did not create an issue of fact as to Kroger's
actual or constructive notice of the liquid or its role in
creating the hazard. Mr. Green shows neither error justifying
relief under Rule 60(b)(1) or 59(e) nor extraordinary
circumstances justifying relief under Rule 60(b)(6).
Accordingly, the Motion to Reconsider must be denied.
 Ms. Green died by suicide after the
suit was filed and Mr. Green, her father, was substituted as
plaintiff in his capacity as administrator of her ...