United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE
the Court is Defendant Christopher Kelleher's
(“Defendant”) Motion for Reconsideration of
Temporary Restraining Order. (Dkt. 21). After considering
Defendant's Motion, Plaintiff's Response, and the
relevant law, the Court hereby DENIES Defendant's Motion.
suit involves an alleged breach of a non-compete covenant.
The Court held a hearing on Plaintiff's Application for a
Temporary Restraining Order on March 31, 2017. (See
Dkt. 16). It issued an Order granting Plaintiff's
Application on April 5, 2017. (Dkt. 19). In that Order, the
Court directed the parties to file a written notice
identifying potential dates for a preliminary injunction
hearing. (Id. at 7). On April 6, 2017, Defendant
filed the instant motion. (Dkt. 21).
54(b) allows a court to revise an interlocutory order at any
time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities.
Fed.R.Civ.P. 54(b). The Federal Rules of Civil Procedure do
not, however, specifically provide for motions for
reconsideration. See Shepherd v. Int'l Paper
Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004). Motions for
reconsideration from interlocutory orders are generally
governed by the standards for Rule 59(e) motions.
Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d
367, 371 n.10 (5th Cir. 1998); Magallanes v. Ford Motor
Co., No. EP-13-CV-00175-DCG, 2014 WL 12588335, at *1-2
(W.D. Tex. June 19, 2014).
motion under Rule 59(e) must “clearly establish either
a manifest error of law or fact or must present newly
discovered evidence.” Ross v. Marshall, 426
F.3d 745, 763 (5th Cir. 2005) (citing Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Relief is
also appropriate where there has been an intervening change
in controlling law. See Schiller v. Physicians Res. Grp.
Inc., 342 F.3d 563, 567 (5th Cir. 2003). Motions under
Rule 59(e) “cannot be used to raise arguments which
could, and should, have been made before the judgment
issued.” Id. While a district court has
“considerable discretion” to grant or deny a
motion under Rule 59(e), reconsideration under Rule 59(e) is
an extraordinary remedy that courts should use sparingly.
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th
Cir. 2004); see also In re Goff, 579 F. App'x
240, 245 (5th Cir. 2014) (“A motion for reconsideration
should only be granted in extraordinary
preliminary matter, the Court notes that Defendant's
Motion includes no discussion of the applicable legal
standard. (See generally Mot. Reconsideration, Dkt.
21). Therefore, while the Court applies Rule 59(e) in
reviewing the Motion, it does so absent any argument from
Defendant that he has met the substantial burden described
articulating his request for relief, Defendant argues first
that the Court's order, because it does not set an
expiration date for the temporary restraining order, is a
“de facto preliminary injunction for purposes
of review.” (Id. at 2). Defendant further
asserts that the Court “conflated the Agreements'
definition of ‘Competing Business' . . . with the
scope of activity restrained by the non-compete provisions
and “expressly ‘decline[d] to reform the
non-compete covenants at this point, ' but then proceeded
to reform the covenants anyway.” (Id. at 3-5).
According to Defendant, “this reformation and
enforcement . . . is extremely premature under Texas
law” and “defies the purpose of a temporary
restraining order, which is to hold the status quo in place
until the Court has an opportunity to consider the propriety
of more lasting relief.” (Id. at 6).
first argument-that the temporary restraining order in
question should be considered a de facto preliminary
injunction for purposes of review-is unsupported by
applicable law. It is true that an “ex parte order that
purports to be of indefinite duration is a preliminary
injunction rather than a temporary restraining order, ”
United States v. Holy Land Found. Relief and Dev.,
445 F.3d 771, 789 (5th Cir. 2006); so too would be a
temporary restraining order that “continued beyond the
time permissible under Rule 65, ” Sampson v.
Murray, 415 U.S. 61, 86 (1974). In the instant case,
however, neither of these situations applies. The Court's
Order was not issued ex parte, but followed a hearing at
which both parties appeared. The Order also does not purport
to be of indefinite duration, but instead explicitly directs
the parties to advise the Court as to their preferred date
for a hearing on Plaintiff's request for preliminary
injunction. Finally, while the Order does not set an explicit
expiration date, nothing in the Order suggests that the
relief granted therein will extend past the fourteen-day
deadline provided by Federal Rule of Civil Procedure
65(b)(2). The Order therefore is not a preliminary injunction
and is not appealable under 28 U.S.C. § 1292(a)(1).
See Turner v. Epps, 460 F. App'x 322, 325-26
(5th Cir. 2012) (per curiam) (noting that a temporary
restraining order is immediately appealable when it
“ha[s] the same practical effect as the granting of a
second argument-that the Court “conflated the
Agreements' definition of ‘Competing Business'
. . . with the scope of activity restrained”-neither
raises a manifest error of law or fact nor presents newly
discovered evidence. The argument is therefore not an
appropriate ground for relief under Rule 59(e), and the Court
declines to address it further. See Ross, 426 F.3d
at 763 (5th Cir. 2005).
finally argues that the Court, though it expressly declined
to reform the noncompete covenants, in fact did so, and that
“Texas law is quite clear that reformation of an
overly-broad non-compete agreement is wholly inappropriate at
a temporary restraining order or preliminary injunction
hearing.” (Mot. Reconsider, Dkt. 21, at 4).
Defendant's assertion regarding the state of Texas law is
incorrect. Of the two cases Defendant cites in support of his
position- Sentinel Integrity Solutions and Gray
Wireline-one has been rejected by Texas courts, and the
other predates contrary authority. See Tranter, Inc. v.
Liss, No. 02-13-000167-CV, 2014 WL 1257278, at *10
(Tex.App.-Fort Worth, Mar. 27, 2014, no pet.) (noting the
defendant's reliance on Gray Wireline Serv., Inc. v.
Cavanna, 374 S.W.3d 464 (Tex.App.-Waco 2011, no pet.)
but holding that “reformation is not only a final
remedy”); Sentinel Integrity Sols., Inc. v. Mistras
Group, Inc., 414 S.W.3d 911, 920 (Tex.App.-Houston [1st
Dist] 2013, pet. denied). Indeed, Texas courts have
repeatedly reformed non-compete covenants at the temporary
restraining order or preliminary injunction
stage. See, e.g., Tranter, 2014 WL
1257278, at *10 (reviewing cases); McKissock, LL C v.
Martin, No. EP-16-CV-400, 2016 WL 8138815, at *9 (W.D.
Tex. Nov. 10, 2016) (reforming a non-compete covenant while
granting a preliminary injunction). Defendant has therefore
failed to demonstrate a manifest error of law, as required by
Rule 59(e). See Ross, 426 F.3d at 763 (5th Cir.