United States District Court, S.D. Texas, Houston Division
H. Miller United State District Judge.
before the court is a motion for rehearing filed by plaintiff
Julia Menard. Dkt. 34. After considering the motion,
response, related documents in the record, and the applicable
law, the court is of the opinion that the motion for
rehearing should be DENIED but that leave to amend should be
court referred this case to Magistrate Judge Nancy K. Johnson
pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). Dkt. 9. On
July 29, 2016, defendant St. Joseph Emergency Physicians,
PLLC (“SJEP”) filed a motion to dismiss pursuant
to Federal Rules of Civil Procedure 12(b)(1), (4)(m), (5),
and (6) and 28 U.S.C. § 1448. Dkt. 22. Menard filed a
response on August 1, 2016. Dkt. 24. After receiving leave to
file a late reply, SJEP filed a reply on December 19, 2016.
Dkt. 27. The Magistrate Judge entered an amended memorandum,
recommendation, and order (“M&R”) regarding
the motion to dismiss on February 28, 2017. Dkt. 32. She
recommended that SJEP's motion to dismiss be granted and
recommended, sua sponte, that Menard's premises
liability claims against defendant St. Joseph Medical Center,
LLC (“St. Joseph's”) also be dismissed. Dkt.
party timely filed objections to the M&R. On March 22,
2017, the court adopted the M&R in full, granted
SJEP's motion to dismiss and also dismissed Menard's
premises liability claim against St. Joseph's. Dkt. 33.
Menard filed the instant motion for rehearing on March 27,
2017. Dkt. 34. St. Joseph's filed a response. Dkt. 36.
SJEP did not file a response. The motion is now ripe for
Legal Standard and Analysis
it is not entirely clear, Menard appears to object to all of
the Magistrate Judge's recommendations and to this
court's order adopting the recommendations. See
Dkt. 34. Menard contends that her complaint states a
prima facie case of premises liability against St.
Joseph's. Id. Menard asserts that she did not
object to the M&R because her deposition was not
transcribed in sufficient time. Id. She asserts that
relevant portions of her deposition, which she attached to
the motion for rehearing, show “offending acts by
defendant and the intoxicated patient.” Id.
Motion for Rehearing
Federal Rules of Civil Procedure do not recognize a motion
for reconsideration or rehearing. Edwards v. City of
Hous., 78 F.3d 983, 995 (5th Cir. 1996). However,
motions that challenge a prior judgment on the merits are
treated as either a Rule 59(e) or Rule 60(b) motion.
Id. “If the motion is served within  days
of the rendition of judgment, the motion falls under Rule
59(e); if it is served after that time, it falls under Rule
60(b).” Ford Motor Credit Co. v. Bright, 34
F.3d 322, 324 (5th Cir. 1994). Here, the motion was filed
within 28 days, so the court considers it pursuant to Rule
59(e). A “motion to alter or amend the judgment under
Rule 59(e) ‘must clearly establish either a manifest
error of law or fact or must present newly discovered
evidence' and “cannot be used to raise arguments
which could, and should, have been made before the judgment
issued.'” Rosenzweig v. Azurix Corp., 332
F.3d 854, 864 (5th Cir. 2003) (quoting Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
are several problems with Menard's motion for rehearing.
First, Menard's excuse for failing to object in the first
place is suspect. She states that she did not timely file
objections to the Magistrate Judge's M&R because she
was waiting for her deposition to be transcribed.
See Dkt. 34. However, she states that she received
the transcribed deposition on March 7, 2017. See Id.
This was exactly seven days after the M&R was filed,
giving Menard a full week to review the deposition and file
objections. Second, Menard could have filed a request for an
extension rather than simply ignoring the deadline. Third,
since the motion at issue was a motion to dismiss and the
court cannot consider evidence outside of the complaint when
considering a motion to dismiss, the only possible relevance
of a deposition would be if one were needed to make a case to
amend the complaint to add new facts. See Spivey v.
Robertson, 197 F.3d 772, 774 (5th Cir. 1999) (“The
court will not look beyond the face of the pleadings to
determine whether relief should be granted based on the
alleged facts.”). And since the deposition for which
Menard was waiting was her own deposition, there was
really no need to wait for it to be transcribed to explain
new facts known to Menard that may have elevated her claim to
one that could survive a motion to dismiss. Thus, the court
finds Menard's argument regarding the tardiness of her
objections entirely unconvincing. Her motion does not
“clearly establish either a manifest error of law or
fact” or “present newly discovered
evidence.” Rosenzweig, 332 F.3d at 864. The
motion for a rehearing is DENIED.
Motion to Amend
after reviewing the deposition testimony attached to the
motion for rehearing and in the interest of justice, the
court construes the arguments in the motion for a rehearing
as a motion to amend. The court considers the following
factors when determining whether to allow an amendment at
this point in the case: “‘undue delay, bad faith
or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
the allowance of the amendment, [and] futility of the
amendment.'” Rosenzweig, 332 F.3d at 864
(quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227 (1962)). The court does not believe that Menard's
counsel delayed in seeking to amend in bad faith or that an
amendment will cause undue prejudice to the defendants at
this early stage in the litigation. Thus, the court will
focus on whether an amendment would be futile.
motion, Menard mainly takes issue with the dismissal of the
premises liability claim against St. Joseph's.
Menard's premises liability claim against St.
Joseph's is based on her allegation that she was
assaulted by an intoxicated patient while performing her
duties at St. Joseph's as an employee of SJEP. Dkt. 13.
She contends that St. Joseph's negligently failed to
provide a safe and secure workplace. Id. In the
M&R, the Magistrate Judge relied primarily on
Timberwalk Apartments Partners, Inc. v. Cain, 972
S.W.2d 749, 756 (Tex. 1998), when recommending that
Menard's premises liability claim against St.
Joseph's be dismissed. See Dkt. 32. In
Timberwalk, the Texas Supreme Court noted that
generally “a person has no legal duty to protect
another from the criminal acts of a third person.” 972
S.W.2d at 756. However, it explained that there is an
exception if the person or entity controlling the premises
“‘knows or has reason to know of an unreasonable
or foreseeable risk of harm to the invitee.'”
Id. (quoting Lefmark Mgmt. Co. v. Old, 946
S.W.2d 52, 53 (Tex. 1997)). The court specifically found that
“[w]hen the ‘general danger' is the risk of
injury from criminal activity, the evidence must reveal
‘specific previous crimes on or near the premises'
in order to establish foreseeability.” Id.
Thus, it held that the “foreseeability of an
unreasonable risk of criminal conduct is a prerequisite to
imposing a duty of care on a person who owns or controls
premises to protect others on the property from the
risk.” Id. In ruling on the motion to dismiss
and recommending the sua sponte dismissal of the
premises liability claim against St. Joseph's, the
Magistrate Judge noted that Menard failed to allege that
there were assaults at St. Joseph's “that would put
[the defendants] on notice of the foreseeable risk that the
complained-of assault could occur.” Dkt. 32.
court has reviewed the selections of Menard's deposition
attached to Menard's motion and finds that an amendment
of the premises liability allegations in the complaint likely
would not be futile. The court therefore
GRANTS leave to amend the premises liability
claim only. The court instructs Menard's counsel to
closely review the reasoning in the M&R and the
Timberwalk decision before amending and to confer
with his client regarding any facts that may support the
claim prior to amending the claim. Menard's counsel shall
file the second amended complaint ...