United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE.
Before the Court is Defendants Daniel Kistner's and Jose
Madrigal's Motion for Reconsideration of Order Denying
Motion to Dismiss (Dkt. #51). Having considered the
pleadings, the Court finds the motion should be granted in
part and denied in part.
worked for the City of McKinney, Texas (the
“City”) Fire Department from March 2003 to July
16, 2015. During his employment with the Fire Department,
Plaintiff served as the elected president of the
International Association of Fire Fighters, Local 2661
(“Local 2661” or the “Association”).
Plaintiff alleges that the City terminated his employment
after he organized a photo shoot for Local 2661's
political action committee and its endorsed candidates for
the political action committee posted photographs from the
photo shoot on its Facebook page, City Fire Chief Daniel
Kistner (“Defendant Kistner”) asked the City
Police Department to open an administrative inquiry to
determine whether the post violated any City policy or rule.
After an initial inquiry, Defendant Kistner commenced a full
Internal Affairs investigation into Plaintiff. On July 16,
2015, at the conclusion of the Internal Affairs
investigation, Defendant Kistner signed a Notice of
Disciplinary Action (the “Notice”) terminating
Plaintiff for violating the City's policy on
insubordination. The Notice stated that Plaintiff failed to
follow an order given by the City Manager's office not to
use City equipment to endorse candidates and failed to use
his chain of command for his request to use City-owned
property. Deputy City Manager Jose Madrigal (“Defendant
Madrigal”) approved Plaintiff's termination.
April 10, 2017, the Court issued an order denying Defendants
Kistner's and Defendant Madrigal's motions to dismiss
Plaintiff's First Amended Complaint (Dkt. #50). On April
20, 2017, Defendants filed the pending motion for
reconsideration (Dkt. #51). On May 2, 2017, Plaintiff filed a
response (Dkt. #52). On May 12, 2017, Defendants filed a
reply (Dkt. #53).
motion seeking “reconsideration” may be construed
under either Federal Rule of Civil Procedure 59(e) or 60(b).
Shepherd v. Int'l Paper Co., 372 F.3d 326, 328
n. 1 (5th Cir. 2004); see also Milazzo v. Young, No.
6:11-cv-350-JKG, 2012 WL 1867099, at *1 (E.D. Tex. May 21,
2012). Such a motion “‘calls into question the
correctness of a judgment.'” Templet v.
HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004)
(quoting In re Transtexas Gas Corp., 303 F.3d 571,
581 (5th Cir. 2002)).
a motion for reconsideration is filed within 28 days of the
judgment or order of which the party complains, it is
considered to be a Rule 59(e) motion; otherwise, it is
treated as a Rule 60(b) motion.” Milazzo, 2012
WL 1867099, at *1; see Shepherd, 372 F.3d at 328 n.
1; Berge Helene Ltd. v. GE Oil & Gas, Inc., No.
H-08-2931, 2011 WL 798204, at *2 (S.D. Tex. Mar. 1, 2011)).
Defendants filed their motion for reconsideration within 28
days of order denying their motion to dismiss; therefore, the
motion will be considered a Rule 59(e) motion.
59(e) motion is “not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been
offered or raised before the entry of judgment.”
Templet, 367 F.3d at 479 (citing Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
“Rule 59(e) ‘serve[s] the narrow purpose of
allowing a party to correct manifest errors of law or fact or
to present newly discovered evidence.'”
Id. (quoting Waltman v. Int'l Paper
Co., 875 F.2d 468, 473 (5th Cir. 1989)). “Relief
under Rule 59(e) is also appropriate when there has been an
intervening change in the controlling law.”
Milazzo, 2012 WL 1867099, at *1 (citing Schiller
v. Physicians Res. Grp., 342 F.3d 563, 567 (5th Cir.
2003)). “Altering, amending, or reconsidering a
judgment is an extraordinary remedy that courts should use
sparingly.” Id. (citing Templet, 367
F.3d at 479).
their motion for reconsideration, Defendants argue that the
Court committed an error of fact in finding that Defendants
did not contest that Plaintiff's organization of the
photo shoot motivated his termination (Dkt. #51 at p. 1).
Defendants also argue the Court committed an error of law in
conducting a “generalized approach to the analysis of
qualified immunity.” (Dkt. #51 at p. 1).
order for a public employee to recover for a free speech
retaliation claim, the plaintiff must satisfy four elements:
(1) the plaintiff must suffer an adverse employment decision;
(2) the plaintiff's speech must involve a matter of
public concern; (3) the plaintiff's interest in
commenting on matters of public concern must outweigh the
defendant's interest in promoting efficiency; and (4) the