Gressett v. New Orleans City et al, No. 2:2017cv16628 - Document 45 (E.D. La. 2019)
Court Description: ORDER AND REASONS denying 36 Motion for New Trial; denying 37 Motion for New Trial; denying 40 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. Signed by Judge Sarah S. Vance on 2/6/2019. (cg)
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Gressett v. New Orleans City et al Doc. 45 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ANDREW GRESSET CIVIL ACTION VERSUS NO. 17-16628 CITY OF NEW ORLEANS, ET AL. SECTION “R” (2) ORD ER AN D REASON S Before the Court are plaintiff Andrew Gressett’s m otions to: (1) alter or am end the Court’s judgm ent dism issing his claim s and denying leave to am end his com plaint, and (2) set aside the Magistrate J udge’s order denying plaintiff’s request for subpoenas. Because Gressett has failed to establish either a m anifest error or present newly discovered evidence, the Court denies his m otion to alter or amend the judgment. Because the Magistrate J udge’s order was not clearly erroneous or contrary to law, the Court denies his m otion to set aside the Magistrate J udge’s order. I. BACKGROU N D This case arises out of alleged constitutional violations by a New Orleans Police Departm ent (NOPD) officer. Plaintiff alleges that, on November 11, 20 16, an unidentified NOPD officer m ade “anti-Trum p” and “pro-Black” statements, including that, “[a]nyone that voted for Donald Dockets.Justia.com Trum p is a racist,” at a Waffle House in New Orleans. 1 Plaintiff further alleges that, on Decem ber 14, 20 16, he was leaving the same Waffle House in New Orleans when he noticed the sam e unidentified officer “lying in wait” outside of the restaurant, standing between plaintiff and his vehicle. 2 The unidentified officer was allegedly standing with one hand on his holstered revolver and the other on his holstered Taser. 3 Plaintiff alleges that he stepped aside in an attem pt to avoid the officer, but that the officer stepped into his path and said, “[y]ou’re still being an [a]sshole.”4 Plaintiff alleges he felt threatened and detained by the officer, but proceeded to his vehicle without issue. 5 Plaintiff brought suit against the City of New Orleans, the unidentified officer, and other unidentified law enforcement officers on Decem ber 11, 20 17. 6 The com plaint asserts claim s for violations of “federal civil rights statutes” and for negligence. 7 On March 26, 20 18, the City m oved to dism iss the com plaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 1 2 3 4 5 6 7 R. Doc. 1 at 4-5. Id. at 5. Id. Id. Id. R. Doc. 1. Id. at 2, 8-11. 2 12(b)(6). 8 Before responding to the City’s m otion to dism iss, plaintiff sought leave to am end his com plaint. 9 The Magistrate J udge denied this m otion on May 2, 20 18. 10 On August 1, 20 18, the Court granted the City’s m otion to dism iss and affirm ed the Magistrate J udge’s decision denying leave to am end. 11 It therefore dism issed plaintiff’s complaint with prejudice. 12 On August 24, 20 18, plaintiff filed a m otion seeking issuance of a subpoena, which the Magistrate J udge denied because plaintiff’s case had already been dismissed. 13 Plaintiff now seeks review of the Magistrate J udge’s denial of the subpoena, 14 and he also seeks review under Federal Rule of Civil Procedure 59 of the Court’s order dism issing his case and denying leave to am end. 15 The City opposes the m otions. 16 8 9 10 11 12 13 14 15 16 R. Doc. 7. R. Doc. 12. R. Doc. 20 . R. Doc. 33. R. Doc. 34. R. Doc. 35; R. Doc. 39. R. Doc. 40 . R. Doc. 36; R. Doc. 37. R. Doc. 42. 3 II. D ISCU SSION A. Mo tio n to Alte r o r Am e n d th e Ju d gm e n t Motions seeking review of a previous order disposing of the case are treated as Rule 59(e) m otions to alter or am end the judgm ent. See Ford Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994). A district court has considerable discretion to grant or deny a m otion under Federal Rule of Civil Procedure 59(e). See Edw ard H. Bohlin Co. v. Banning Co., 6 F.3d 350 , 355 (5th Cir. 1993). The Court m ust “strike the proper balance between two com peting im peratives: (1) finality, and (2) the need to render just decisions on the basis of all the facts.” Id. Reconsideration, however, “is an extraordinary remedy that should be used sparingly.” Tem plet v. Hy droChem Inc., 367 F.3d 473, 479 (5th Cir. 20 0 4); see also Fields v. Pool Offshore, Inc., No. 97-3170 , 1998 WL 43217, at *2 (E.D. La. Feb. 3, 1998), aff’d, 182 F.3d 353 (5th Cir. 1999). To succeed on a Rule 59(e) m otion, therefore, a party m ust “clearly establish either a m anifest error of law or fact or m ust present newly discovered evidence.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 20 0 5). Rule 59(e) m otions are “not the proper vehicle for rehashing evidence, legal theories, or argum ents that could have been offered or raised before the entry of judgm ent.” Tem plet, 367 F.3d at 478-79. “A m otion to reconsider based 4 on an alleged discovery of new evidence should be granted only if (1) the facts discovered are of such a nature that they would probably change the outcom e; (2) the facts alleged are actually newly discovered and could not have been discovered earlier by proper diligence; and (3) the facts are not m erely cum ulative or im peaching.” Ferraro v. Liberty Mut. Fire Ins. Co., 796 F.3d 529, 534 (5th Cir. 20 15) (quoting Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 20 10 )). The Court has reviewed Gressett’s motions for reconsideration and finds that they do not dem onstrate a manifest error of law or fact, nor do they present newly discovered evidence. To the contrary, they m erely rehash the legal arguments considered in the Court’s order on the defendants’ m otion to dism iss. The docum ents he cites as new evidence were either available to Gressett when he responded to defendants’ m otion to dism iss and sought to am end his complaint, or they contain no inform ation relevant to the disposition of his claim s. Gressett’s m otions for reconsideration are therefore denied. B. Mo tio n to Se t As id e Magis trate Ju d ge ’s Ord e r A m agistrate judge’s ruling on a non-dispositive civil m otion m ay be appealed to the district court. Fed. R. Civ. P. 72(a). When a tim ely objection is raised, the district judge m ust review the m agistrate judge’s ruling and 5 “m odify or set aside any part of the order that is clearly erroneous or contrary to law.” Id. The court reviews the m agistrate judge’s “‘factual findings under a clearly erroneous standard,’ while ‘legal conclusions are reviewed de novo.’” Moore v. Ford Motor Co., 755 F.3d 80 2, 80 6 (5th Cir. 20 14) (quoting Alldread v. City of Grenada, 988 F.2d 1425, 1434 (5th Cir. 1993)). A factual finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a m istake has been com m itted.” United States v. U.S. Gy psum Co., 333 U.S. 364, 395 (1948). A legal conclusion is contrary to law “when the m agistrate fails to apply or m isapplies relevant statutes, case law, or rules of procedure.” Am brose-Frazier v. Herzing Inc., No. 15-1324, 20 16 WL 890 40 6, at *2 (E.D. La. Mar. 9, 20 16); Bruce v. Hartford, 21 F. Supp. 3d 590 , 594 (E.D. Va. 20 14) (“For questions of law there is no practical difference between review under Rule 72(a)’s contrary to law standard and a de novo standard.” (internal quotations and m odifications om itted)). The Magistrate J udge correctly denied plaintiff’s request for a subpoena because plaintiff’s claims had already been dism issed when he requested the subpoena. Federal Rule of Civil Procedure 45(a)(2) provides that “[a] subpoena m ust issue from the court where the action is pending.” The Court could not issue plaintiff’s subpoena because his action was not 6 pending when he subm itted his request. 17 In addition, plaintiff’s request for the subpoena was futile. The video that plaintiff seeks depicts the Waffle House incident to which plaintiff refers in his com plaint. 18 The plaintiff already had the opportunity to allege any illegal behavior related to this incident in his com plaint, and the Court took those allegations as true for the purpose of evaluating defendant’s motion to dism iss. See Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9) (courts m ust “accept all factual allegations in the com plaint as true” when ruling on a m otion to dism iss). Therefore, even if the subpoenaed video depicted the Waffle House incident exactly as plaintiff describes it, he has still failed to state a claim against defendants. Because the Court is not authorized to issue a subpoena in a dism issed case, and because the subpoena would have been futile, the Court finds no error in the Magistrate’s decision. 17 See R. Doc. 34. R. Doc. 40 -1 at 3 (“The Petitioner seeks . . . to obtain via subpoena and present to the District court the videotapes of the two Waffle House incidents involving the Petitioner . . . .”). 7 18 CON CLU SION For the foregoing reasons, plaintiff’s m otions are DENIED. New Orleans, Louisiana, this _ _6th _ _ _ day of February, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 8
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