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Zummer v. Sallet

United States District Court, E.D. Louisiana

October 18, 2019

MICHAEL ZUMMER
v.
JEFFREY SALLET, ET. AL.

         SECTION: “J” (2)

          ORDER & REASONS

          CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

         Before the court is a Motion for Reconsideration (Rec. Doc. 86) filed by Plaintiff, Michael Zummer, regarding this Court's order and reasons issued on September 5, 2019 (Rec. Doc. 83). This Court has reviewed the memoranda of the parties, the record, and the applicable law, and concludes that Plaintiff's Motion for Reconsideration (Rec. Doc. 86) should be DENIED, insofar as all of Plaintiff's previously dismissed claims remain dismissed but granted insofar as the Court has reconsidered its rationale and Plaintiff's Count Two claims against defendants Hardy, Jupina, and Rees in their individual capacities are hereby dismissed under Rule 12(b)(6) as opposed to 12(b)(1).

         FACTS AND PROCEDURAL BACKGROUND

         The Court assumes the reader's familiarity with this case and provides only a brief account of the relevant facts and procedural history. The litigation arises from Plaintiff's decision to send two letters to Honorable Judge Kurt Englehardt, then a federal district judge in the Eastern District of Louisiana, alleging impropriety and malfeasance by the DOJ in the prosecution of Harry Morel Jr. Plaintiff possessed the information contained in the letters because he was the agent tasked with investigating Morel, as well as being generally aware of goings on in the DOJ due to his status as an FBI agent. Subsequently, the FBI revoked Plaintiff's security clearance and suspended him without pay. The FBI also refused to allow Plaintiff to publish his letters to the public.

         Plaintiff then brought this suit in the Eastern District of Louisiana on August 7, 2017. Plaintiff's suit contained two Counts based on two decisions, (1) the revocation of his security clearance and subsequent suspension, and (2) the refusal to allow him to publish the letters to the public. Plaintiff named as defendants every FBI official he believed responsible for the first decision, and every FBI official he believed responsible for the second. All officials were sued in their individual and official capacity.

         In the September 5th Order and Reasons, the Court dismissed Plaintiff's Count One claims in their entirety, as well as Plaintiff's Count Two Claims against defendants in their individual capacity, for lack of subject-matter jurisdiction. Thus, the only remaining claim was Plaintiff's Count Two claim against defendants in their official capacity. In his Motion for Reconsideration, Plaintiff seeks reinstatement of all previously dismissed claims.

         LEGAL STANDARD

         The Federal Rules of Civil Procedure do not expressly allow motions for reconsideration of an order. Bass v. U.S. Dep't of Agric., 211 F.3d 959, 962 (5th Cir. 2000). The Fifth Circuit treats a motion for reconsideration challenging a prior judgment as either a motion “to alter or amend” under Federal Rule of Civil Procedure 59(e) or a motion for “relief from judgment” under Federal Rule of Civil Procedure 60(b). Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1076 (5th Cir. 1994).

         The difference in treatment is based on timing. If the motion is filed within twenty-eight days of the judgment, then it falls under Rule 59(e). Fed.R.Civ.P. 59(e); Lavespere, 910 F.2d at 173. However, if the motion is filed more than twenty-eight days after the judgment, but not more than one year after the entry of judgment, it is governed by Rule 60(b). Fed.R.Civ.P. 60(c); Lavespere, 910 F.2d at 173. In the present case, Plaintiff's Motion for Reconsideration (Rec. Docs. 86) were filed within twenty-eight days of the issuance of the Court's order (Rec. Docs. 83). As a result, Plaintiff's Motions for Reconsideration are treated as motions to alter or amend under Rule 59(e).

         Altering or amending a judgment under Rule 59(e) is an “extraordinary remedy” used “sparingly” by the courts. Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion to alter or amend calls into question the correctness of a judgment and is permitted only in narrow situations, “primarily to correct manifest errors of law or fact or to present newly discovered evidence.” Id.; see also Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003). Manifest error is defined as “[e]vident to the senses, especially to the sight, obvious to the understanding, evident to the mind, not obscure or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evidence, and self-evidence.” In Re Energy Partners, Ltd., 2009 WL 2970393, at *6 (Bankr.S.D.Tex. Sept. 15, 2009) (citations omitted); see also Pechon v. La. Dep't of Health & Hosp., 2009 WL 2046766, at *4 (E.D. La. July 14, 2009) (manifest error is one that “‘is plain and indisputable, and that amounts to a complete disregard of the controlling law'”) (citations omitted).

         The Fifth Circuit has noted that “such a motion is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before entry of judgment.” Templet, 367 F.3d at 478-79. Nor should it be used to “re-litigate prior matters that ... simply have been resolved to the movant's dissatisfaction.” Voisin v. Tetra Techs., Inc., No. 08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010). Thus, to prevail on a motion under Rule 59(e), the movant must clearly establish at least one of three factors: (1) an intervening change in the controlling law, (2) the availability of new evidence not previously available, or (3) a manifest error in law or fact. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (to win a Rule 59(e) motion, the movant “must clearly establish either a manifest error of law or fact or must present newly discovered evidence”); Schiller, 342 F.3d at 567.

         DISCUSSION

         A. The new evidence does not warrant reconsideration of the court's dismissal of ...


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