United States District Court, W.D. Louisiana, Shreveport Division
JOE D. MAGEE, ET AL.
BPX PROPERTIES (N.A.), L.P.
HORNSBY MAGISTRATE JUDGE
MAURICE HICKS, JR., CHIEF JUDGE
the Court are two Motions filed by Plaintiffs Joann Fulmer
Magee, Joe D. Magee, and the Pesnell Law Firm (collectively
“Plaintiffs”) against Defendant BPX Properties
(N.A.), LP (“BPX”). The first motion is a Motion for
New Trial and/or Reconsideration (Record Document 145) of
this Court's March 29, 2019 Judgment
(“Judgment”) dismissing all remaining claims
against BPX. See Record Document 144. The second
motion is a Motion to Amend/Correct (Record Document 146) the
Complaint to add claims of miscalculation of Plaintiffs'
royalty payments. BPX filed oppositions to both motions.
Record Documents 150 & 151. Plaintiffs filed replies to
BPX's opposition. See Record Documents 152 &
153. For the reasons stated in the instant Memorandum Ruling,
Plaintiffs' Motion for New Trial and/or Reconsideration
and Motion to Amend/Correct are hereby
Magees' Motion for New Trial and/or
Federal Rules of Civil Procedure do not recognize a motion
for reconsideration per se. See Cormier v.
Turnkey Cleaning Servs., LLC, 295 F.Supp.3d 717, 719
(W.D. La. 2017). Nevertheless, motions to reconsider court
orders have been construed as falling under Rule 54(b), Rule
59(e), or Rule 60(b) of the Federal Rules of Civil Procedure.
See Collins v. Brice Bldg. Co., LLC, No. 12-2319,
2013 WL 121655, at *1 (E.D. La. Jan. 9, 2013) (collecting
cases). Rules 59 and 60 apply only to final judgments.
See id. If a motion for reconsideration is filed
within 28 days of the judgment of which the party complains,
it is a Rule 59(e) motion; otherwise, it is treated as a Rule
60(b) motion. See Healthsmart Benefit Sols., Inc. v.
Principia Underwriting, No. 14-00766, 2015 WL 12591812,
at *1 (W.D. La. Mar. 19, 2015). Because Plaintiffs'
motion was filed within 28 days of Judgment, the Court must
consider it a motion to alter or amend the judgment under
general, the grounds for granting a Rule 59(e) motion are as
follows: “(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.” In re
Self, 172 F.Supp.2d 813, 816 (W.D. La. 2001). These
motions are “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. 2004). Furthermore, rulings should only be reconsidered
“where the moving party has presented substantial
reasons for consideration.” In re Self, 172
F.Supp.2d at 816 (internal citations omitted). Therefore,
reconsideration of a judgment is “an extraordinary
remedy that should be used sparingly.”
Templet, 367 F.3d at 479.
contend the Judgment should be reconsidered for several
reasons. First, Plaintiffs assert the Judgment was
“improper, invalid, and ineffective as a matter of
law” because the Court did not give Plaintiffs proper
notice of its decision to reconsider its earlier ruling of
summary judgment. Record Document 145-1 at 5-6. Additionally,
Plaintiffs seek reconsideration on the grounds that arguments
made in their opposition to summary judgment should have been
treated as leave to amend. See id. at 6.
Furthermore, Plaintiffs contend the evidence presented during
this litigation clearly demonstrates that BPX did not pay
Plaintiffs the correct amount of royalties. See id.
at 8- 9. However, BPX contends Plaintiffs had notice that
they failed to allege a claim for improper payment of
royalties as it was BPX's “primary argument”
in their Motion for Summary Judgment. Record Document 150 at
2. Further, BPX asserts Plaintiffs had ample opportunity to
amend their pleadings during the litigation. See id.
at 3. Finally, BPX contends claims made by Plaintiffs in
their opposition to summary judgment can not be interpreted
as a motion to supplement their petition. See id. at
Court agrees with BPX and finds that Plaintiffs fail to
satisfy Rule 59(e)'s stringent standard. First, despite
Plaintiffs' labeling, the Judgment was not issued sua
sponte. See Record Document 145-1. Rather, the
Judgment was issued after reviewing BPX's Motion for
Summary Judgment filed August 20, 2018, Plaintiffs'
Opposition to Summary Judgment, and BPX's Reply.
See Record Documents 131, 135, & 140. In
BPX's Motion for Summary Judgment, its first argument for
dismissal was that “Plaintiffs have not pleaded a claim
for inaccurate payment of royalty, and any purported claim
for an accounting should be dismissed.” Record Document
131-1 at 5. Therefore, Plaintiffs' assertion that they
were not given proper notice is without merit. Furthermore,
to the extent that Plaintiffs assert the Judgment was a
modification of an earlier order issued by this Court, that
argument must also fail. Courts are permitted to amend
interlocutory orders at any time. See Fed.R.Civ.P.
54(b); see also Holoway v. Triola, 172 F.3d 866 (5th
Cir. 1999) (“It is a well established rule of trial
procedure that a district court may reconsider and reverse a
previous interlocutory order at its discretion.”)
Plaintiffs' arguments made in their Opposition to Summary
Judgment do not constitute leave to amend. Plaintiffs rely on
an unpublished Fifth Circuit case which held that arguments
raised for the first time in opposition to summary judgment
should be construed as a motion to amend the complaint under
Federal Rule of Civil Procedure 15(a). See Riley v.
School Bd. Union Parish, 379 Fed.Appx. 335, 341 (5th
Cir. 2010). Riley, however, is distinguishable from
the current matter. The plaintiff in Riley was a
pro se litigant and had not yet made any amendments
to her complaint. See id. The Riley court
found this significant, and this Court does too. See
matter, Plaintiffs are both represented by senior, highly
experienced counsel and have amended their complaint.
See Record Document 16. Further, as this Court noted
in its Judgment, the supplemental pleading was made
“after the royalty payment at issue was made but did
not include any allegations about the payment…”
Record Document 143 at 3. This demonstrates Plaintiffs
clearly had the opportunity to add the claim disputing the
correct royalty payment calculation but chose not to.
Additionally, Plaintiffs were put on notice of the need to
amend their complaint after reading and responding to
BPX's Motion for Summary Judgment. See Record
Document 131-1 at 5. However, Plaintiffs failed to address
this argument in their opposition and now seek leave to amend
to raise this issue. Plaintiffs' representation by
qualified counsel, their previous amendments to the
complaint, and the substantial notice and time to amend, all
point to the obvious and inescapable conclusion that
Riley is inapplicable.
Plaintiffs' argument that it is “obvious from the
course and scope of Plaintiffs' discovery that Plaintiffs
had claimed, and were claiming, that [BPX] had not properly
paid the royalties due them…” is insufficient to
grant reconsideration. Record Document 145-1 at 9. At best,
this is merely an attempt to “rehash evidence, ”
and does not serve to introduce any new evidence that would
warrant reconsideration. Furthermore, Plaintiffs'
argument is simply an effort to circumvent their failure to
amend their complaint. Plaintiffs have failed to demonstrate
any of the grounds required to grant reconsideration under
Rule 59(e); therefore, this Court DENIES
Plaintiffs' Motion for Reconsideration.
Magees' Motion for Leave to File an Amended
Rule of Civil Procedure 15(a)(2) provides that when the time
period for amending a pleading as a matter of course has
passed, a party may amend its pleadings by consent of the
parties or with leave of court. However, when the
court-ordered deadline to amend the pleadings has passed, an
amended pleading will be allowed “only for good cause
and with the judge's consent.” Fed.R.Civ.P.
16(b)(2); see also S&W Enters., LLC v. SouthTrust
Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003)
(“We take this opportunity to make clear that Rule
16(b) governs amendment of pleadings after a scheduling order
deadline has expired.”). To determine whether the movant
has demonstrated good cause, the Court considers “
‘(1) the explanation for the failure to [timely move
for leave to amend]; (2) the importance of the [amendment];
(3) potential prejudice in allowing the [amendment]; and (4)
the availability of a continuance to cure such
prejudice.' ” S&W Enters., LLC, 315
F.3d at 536 (citing Reliance Ins. Co. v. La. Land &
Expl. Co., 110 F.3d 253, 257 (5th Cir. 1997)).
Plaintiffs seek to file a second amended complaint with
allegations that BPX failed to pay the correct amount of
royalties due under their lease. See Record Document
146-1 at 2-3. Defendant contends, however, that Plaintiffs
cannot demonstrate good cause. See Record Document
151 at 4-6. Specifically, BPX argues that Plaintiffs do not
explain their failure to ...