United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
removed premises liability action, plaintiff Jorge Davila
(“Davila”) moves to alter or amend, or for relief
from, summary judgment entered in favor of defendant Wal-Mart
Stores Texas LLC (“Walmart”) after Davila failed
to respond to Walmart's summary judgment motion. For the
reasons that follow, the court denies the motion.
filed this lawsuit in Texas state court following his slip
and fall at a Walmart store. Walmart removed the case on
September 2, 2015, and then moved for summary judgment on
September 26, 2016, over one year later. Davila did not
respond to the motion by the October 17, 2016 deadline, and
the court granted Walmart's motion for summary judgment
on December 9, 2016. See Davila v. Walmart Stores,
Inc., 2016 WL 7178974, at *1 (N.D. Tex. Dec. 9, 2016)
(Fitzwater, J.) (“Davila I”).
January 6, 2017 Davila filed the instant motion pursuant to
Fed.R.Civ.P. 59(e) and 60(b) to alter or amend or,
alternatively, relieve plaintiff entirely from the judgment
and reinstate summary judgment proceedings. He moves for this
relief on two grounds. First, Davila maintains that his
failure to respond to Walmart's summary judgment motion
resulted from “an unfortunate calendaring error on the
part of Plaintiff's counsel, ” rather than
intentional or conscious disregard. P. Br. 6. Second, he now
presents a “meritorious response, ” id.
at 6, that includes newly submitted evidence of a witness
statement from a Walmart employee,  id. at 4. Davila
also cites a surveillance video submitted to the court in
Davila I as further support. See Davila I,
2016 WL 7178974, at *1. He contends that granting the motion
would not prejudice Walmart, but denying the motion would be
“manifestly unjust” as to him. P. Br. 2. Walmart
opposes the motion.
court will first consider whether Rule 59(e) or 60(b)
provides the proper standard. Under Rule 59(e), a party may
move to “alter or amend a judgment, ” while under
Rule 60(b), a court may “relieve a party . . . from
final judgment” for specific enumerated reasons. Rules
59(e) & 60(b). Whether Rule 59(e) or Rule 60(b) applies
to a motion to reopen a case depends on when the motion is
served. See Drew v. Life Ins. Co. of N. Am., 2009 WL
1856604, at *1 (N.D. Tex. Jun. 29, 2009) (Fitzwater, C.J.)
(citing Lavespere v. Niagara Mach. & Tool Works,
Inc., 910 F.2d 167, 173 (5th Cir. 1990), overruled
on other grounds, Little v. Liquid Air Corp.,
37 F.3d 1069 (5th Cir. 1994)). “If [a] motion is served
[no later than 28 days after the entry of the judgment], the
motion falls under Rule 59(e); if it is served after that
time, it falls under Rule 60(b).” Id.;
see Rule 59(e). Because Davila filed this motion
within 28 countable days of the date the judgment was
entered, the court will consider it under the less onerous
Rule 59(e) standard. See Drew, 2009 WL 1856604, at
59(e) motions serve the narrow purpose of allowing a party to
correct manifest errors of law or fact or to present newly
discovered evidence. See Arrieta v. Yellow Transp.,
Inc., 2009 WL 129731, at *1 (N.D. Tex. Jan. 20, 2009)
(Fitzwater, C.J.). “Such motions are not the proper
vehicle for rehashing old arguments or advancing theories of
the case that could have been presented earlier.”
Id. (quoting AMS Staff Leasing, NA, Ltd. v.
Associated Contract Truckmen, Inc., 2005 WL 3148284, at
*3 (N.D. Tex. Nov. 21, 2005) (Fitzwater, J.) (internal
quotation marks omitted). The movant must demonstrate valid
reasons to justify the court's reconsideration of a prior
ruling. See Hearn v. Quarterman, 2008 WL 679030, at
*3 (N.D. Tex. Mar. 13, 2008) (Fitzwater, C.J.).
district court has considerable discretion in deciding
whether to reopen a case under Rule 59(e), reconsideration of
a judgment after its entry is an extraordinary remedy that
should be used sparingly. See Templet v. HydroChem
Inc., 367 F.3d 473, 479 (5th Cir. 2004). Rule 59(e)
generally “favor[s] the denial of motions to alter or
amend a judgment[.]” S. Constructors Grp., Inc. v.
Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993)
court first considers whether the calendaring error by
Davila's counsel is sufficient to warrant granting Rule
context of Rule 60(b)(1)-which informs (although does not
control) the court's Rule 59(e) analysis-the Fifth
Circuit has held that it is not an abuse of discretion to
deny relief when movant's proffered justification is
counsel's “inadvertent mistake.”
Drew, 2009 WL 1856604, at *3 (citing Edward H.
Bohlin Co. v. Banning Co., 6 F.3d 350, 356-67 (5th Cir.
1993) (affirming denial of Rule 59(e) motion when
plaintiff's only ...