United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.
before the Court is the Plaintiffs' Motion for
Reconsideration of Order Denying Motion to Remand (Doc. No.
23). After considering the Motion, the responses thereto, and
all applicable law, the Court determines that the Motion
should be denied.
case arises out of a multi-vehicle crash that occurred in
Houston, Texas. Four of the five vehicles involved in the
accident were driven by Texas citizens, including Ruiz and
Estrada. The remaining vehicle-a large rig carrying a segment
of a wind turbine tower-was driven by an Oregon citizen,
Michael Davis, who was employed by Combined Transport, Inc.,
an Oregon company.
following procedural history is undisputed. On August 12,
2015, Ruiz filed a lawsuit against Defendants in the 295th
Judicial District Court of Harris County, Texas. Because
there was complete diversity of citizenship and the amount in
controversy was more than $75, 000, the lawsuit was
removable. 28 U.S.C. §1441. Ruiz then learned of a
first-filed lawsuit brought by another individual involved in
the accident in the 133rd Judicial District Court of Harris
County. That lawsuit, which had been served against
Defendants on August 3, 2015, was also removable, as it met
both the diversity of citizenship and the amount in
controversy requirements. Ruiz nonsuited her original case
and intervened in the first-filed lawsuit on August 28, 2015.
However, when she did so, she also sued the other parties
involved in the accident-who are all Texas citizens-thereby
destroying complete diversity and rendering the lawsuit
non-removable. Discovery proceeded against all defendants for
over a year, until Ruiz nonsuited the last non-diverse
defendant on October 18, 2016, the same day the case was
called for trial in state court. Defendants removed the case
to federal court that day. Plaintiffs moved to remand, and
the Court denied Plaintiffs' motion on February 24, 2017.
(Doc. No. 22.) Plaintiffs now move for reconsideration of the
Court's Order denying remand.
54(b) allows a court to revise an interlocutory order any
time prior to the entry of judgment adjudicating all the
claims and all the parties' rights and liabilities. 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);
Thakkar v. Balasuriya, No. H-09-0841, 2009 WL
2996727, at *1 (S.D. Tex. Sept. 9, 2009).
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 the controlling law. See Schiller v. Physicians
Resource Group 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. In considering a motion
for reconsideration, a 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. v. Banning Co., 6
F.3d 350, 355 (5th Cir. 1993). While a district court has
“considerable discretion” to grant or deny a
motion under Rule 59(e), id., the Fifth Circuit
cautions that 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, No. 13-41148, 2014
WL 4160444, *4 (5th Cir. 2014) (“A motion for
reconsideration should only be granted in extraordinary
argue that removal is improper because it rests on grounds
not mentioned in Defendants' original Notice of Removal
(Doc. No. 1). Specifically, Plaintiffs note that the original
Notice of Removal rests on 28 U.S.C. § 1446(b)(3). (Doc.
No. 1 at 4.) Under § 1446(b)(3), if the case was not
initially removable, the defendant may remove the case
“within thirty days after… an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” The Amended Notice of Removal, filed after
Plaintiffs moved to remand the case, adds an alternative
statutory argument: “To the extent that this lawsuit
was initially removable, ” Defendants urged
that they were entitled to remove the case under 28 U.S.C.
§ 1446(b)(2)(B). (Doc. No. 9 at 6 (emphasis added).) The
Court found that the case was initially removable and denied
remand based on § 1446(b)(2)(B). (Doc. No. 22.)
Plaintiffs now argue that, because the § 1446(b)(2)(B)
argument did not appear in the original Notice of Removal,
and because the Amended Notice of Removal was filed outside
the thirty days allowed under § 1446(b)(2)(B), removal
on the basis of § 1446(b)(2)(B) is improper.
Plaintiffs' arguments that could have been made before
the judgment issued.
for reconsideration “cannot be used to raise arguments
which could, and should, have been made before the judgment
issued.” Schiller v. Physicians Resource Group
Inc., 342 F.3d 563, 567 (5th Cir. 2003). Plaintiffs'
motion raises no newly discovered evidence or change in the
controlling law. Moreover, Plaintiffs' argument that
Defendants should be limited to the statutory arguments made
in their initial Notice of Removal was available at least as
early as November 1, 2016, the date on which Defendants filed
their Amended Notice of Removal. Plaintiffs therefore may not
raise this argument for the first time in a motion for
Court's Order does not contain a manifest error of law or
have Plaintiffs established a manifest error of law or fact.
Plaintiffs correctly note that Defendants are not permitted
to “remove a case on one ground and then, when faced
with a serious challenge to that ground, attempt to justify
removal on an entirely different ground.” See
Waddell v. Edison Chouest Offshore, 93 F.Supp.3d 714,
724-25 (S.D. Tex. 2015) (quoting Hinojosa v. Perez,
214 F.Supp.2d 703, 707 (S.D. Tex. 2002)); see also
Cormier v. Chet Morrison Contractors, LLC, 85 F.Supp.3d
880, 884 (S.D. Tex. 2015). However, Defendants' Amended
Notice of Removal did not present an “entirely
different ground.” Like the original Notice of Removal,
the Amended Notice of Removal alleges diversity jurisdiction
and sets forth facts ...