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Barber v. Spinal Elements

United States District Court, E.D. Louisiana

November 7, 2019


         SECTION “R” (3)



         Before the Court is plaintiff Shane Barber's motion for a new trial[1] and motion for a continuance and an extension of deadlines.[2] Despite failing to file a response to defendant's motion for summary judgment, plaintiff now asks for relief from summary judgment on the basis of deposition testimony scheduled to be taken two weeks after the close of fact discovery. Because plaintiff has failed to show any reason why the Court's grant of summary judgment should be altered, the Court denies both motions.

         I. BACKGROUND

         This is a product liability case. On June 11, 2018, plaintiff Shane Barber filed a petition for damages in Louisiana state court, alleging that an orthopedic screw installed during a surgery performed by Dr. John Logan had broken and that this fracture was causing him pain.[3] On July 23, 2018, defendant removed the action to this Court on the basis of diversity jurisdiction.[4] On September 20, 2018, a preliminary conference was held and the Court issued a scheduling order.[5] The scheduling order allowed nearly a year for discovery.[6] It stated that “depositions for trial use shall be taken and all discovery shall be completed no later than August 13, 2019.”[7]It also required that “Plaintiff's expert disclosures shall be obtained and delivered to counsel for Defendant as soon as possible, but in no event later than June 14, 2019.”[8]

         Although required to carry the burden of proof, plaintiff took a lackadaisical approach to discovery, and flouted a number of deadlines imposed by the Court. For example, plaintiff did not respond timely to defendant's interrogatories and requests for production, requiring defendant to file a motion to compel.[9] Plaintiff also failed to respond to defendant's requests to set plaintiff's deposition, and defendant had to move forward to set the deposition unilaterally.[10] As of June 2019, nine months after discovery began, plaintiff had not set a single deposition and had engaged only in basic written discovery.[11] Notably, plaintiff's expert disclosure deadline came and went, and he disclosed no one.[12]

         On July 1, 2019, defendant filed a motion for summary judgment.[13] In accordance with the local rules of this District, plaintiff's response was due on July 9, 2019. See E.D. La. Civ. R. 7.5 (“Each party opposing a motion must file and serve a memorandum in opposition to the motion with citations of authorities not later than eight days before the noticed submission date.”). Plaintiff did not file a response, request additional time in which to file a response, or file a Rule 56(d) motion requesting deferral in light of additional forthcoming discovery. The motion was submitted to the Court for decision on July 17, 2019.

         On July 28, 2019, nearly three weeks after the response was due, plaintiff filed a deficient motion to continue all deadlines and the trial date set for September 20, 2019.[14] Before this deficiency was remedied, on August 5, 2019, the Court granted defendant's unopposed motion for summary judgment, finding that there was no genuine dispute as to any material fact and that Barber could not prove his case in this complex products liability dispute without expert testimony.[15] Plaintiff subsequently remedied the deficiency with his motion for a continuance and properly filed it.[16] On August 9, 2019, plaintiff filed a motion for a new trial, arguing that the forthcoming deposition of Dr. John Logan-scheduled for August 21, 2019, a week after discovery was to be closed-would provide expert testimony and remedy the concerns expressed by the Court.[17]


         Plaintiff cites both Federal Rules of Civil Procedure 59 and 60 in his motion for a new trial.[18] The Court will examine his request under both Rules.

         A. Rule 59

         Plaintiff moves for a new trial under Rule 59(a)(2), which states that “after a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.” Fed.R.Civ.P. 59(a)(2). But there has been no nonjury trial in this case. Instead, the Court entered summary judgment. The proper vehicle by which to challenge summary judgment is Rule 59(e). The Court therefore construes plaintiff as moving under Rule 59(e).

         Rule 59(e) permits a party to file “[a] motion to alter or amend a judgment . . . after the entry of the judgment.” Fed.R.Civ.P. 59(e). A district court has “considerable discretion” under Rule 59(e). See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). That said, “[r]econsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). “The court must strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts.” Edward H. Bohlin Co., 6 F.3d at 355.

         “A motion to alter or amend the judgment under Rule 59(e) must clearly establish either a manifest error of law or fact or must present newly discovered evidence . . . .” Matter of Life Partners Holdings, Inc., 926 F.3d 103, 128 (5th Cir. 2019) (quoting Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003)). Courts have held that the moving party must show that the motion is necessary based on at least one of the following criteria: (1) “correct[ing] manifest errors of law or fact upon which the judgment is based”; (2) “present[ing] newly discovered or previously unavailable evidence”; (3) “prevent[ing] manifest injustice”; and (4) accommodating “an intervening change in the controlling law.” Fields v. Pool Offshore, Inc., No. 97-3170, 1998 WL 43217, at *2 (E.D. La. Mar. 19, 1998). But the motion “cannot be used to raise arguments which could, and should, have been made before the judgment issued.” Matter of Life Partners Holdings, Inc., 926 F.3d at 128 (quoting Schiller, 342 F.3d at 567).

         Here, plaintiff seems to argue that newly discovered or previously unavailable evidence, in the form of the deposition testimony of Dr. John Logan, merits reconsideration of the Court's judgment. Specifically, plaintiff argues that the Court's grant of summary judgment was “premature because Dr. Logan's Deposition is a necessary device for establishing Plaintiff's case in chief.”[19] Plaintiff makes no other argument as to why this Court should amend its judgment.

         Where a party seeks to upset a summary judgment on the basis of evidence not timely presented, the ...

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