United States District Court, S.D. Texas, Houston Division
METRO HOSPITALITY PARTNERS, LTD, d/b/a CROWNE PLAZA HOTEL, Plaintiff,
LEXINGTON INSURANCE COMPANY, Defendant.
MEMORANDUM AND OPINION
Lee'H. Rosenthal Chief United States District Judge
insured, Metro Hospitality Partners, Ltd., owns a hotel in
Houston, Texas. After a hailstorm damaged the hotel, Metro
promptly notified its property insurer, Lexington Insurance
Company. Lexington quickly responded, inspected, adjusted,
paid part of the claim as an advance, and identified the
amount of covered damage. Lexington approved $820, 649.42 and
paid $585, 699.60 after subtracting the deductible and
depreciation. The parties disputed whether more money was
owed under the policy. Metro filed this suit alleging that
Lexington owed more under the policy and that Lexington also
violated extracontractual Texas common-law and statutory
duties of good faith and fair dealing.
moved for summary judgment that it had complied with its
policy obligation. (Docket Entry No. 21). Lexington argued
that Metro presented no evidence of any injury independent of
the injuries it claimed resulted from Lexington's denial
of the disputed covered loss and therefore Metro could not
recover on its extracontractual good-faith and fair-dealing
claims. This court agreed, following binding Fifth Circuit
precedent construing the-then most recent Texas case law.
(Docket Entry No. 27 at 8-9). After this court ruled, the
Texas Supreme Court issued USAA Texas Lloyds Co. v.
Menchaca, -S.W.3d -, 2017 WL 1311752 (Tex. Apr. 7,
2017). Metro contends that this opinion requires this court
to alter or amend its holding on the extracontractual claims.
Lexington contends that no change is required.
also based its summary judgment motion on the ground that
Metro had failed to cooperate with Lexington's
investigation into the loss, relieving Lexington of any duty
to pay more than the investigation supported. After Lexington
paid and Metro demanded more based on newly claimed losses,
Lexington asked for documents and information substantiating
Metro's demand for additional payment. Metro refused. The
policy required Metro to “assist and cooperate”
with Lexington in the investigation and adjustment. Lexington
invoked Metro's breach of the assist-and-cooperate clause
and argued that the breach barred Metro from bringing this
suit under the “no suits” clause.
court found that until Metro complied with the duty to
cooperate in the claims investigation, Lexington had no
obligation to pay any part of the additional disputed portion
of the claim. Lexington also moved to strike Metro's
experts, who had opined on the cause and amount of the
additional damage the hotel incurred. The court denied
Lexington's motion to strike experts without prejudice
reasserting it depending on what documents and information
complied with Lexington's outstanding document requests.
Lexington now reurges its motion to strike Metro's
experts, Metro responded, Lexington replied, and Metro
surreplied. (Docket Entry Nos. 20, 22, 24, 35, 36). After the
court's summary judgment opinion was issued, Metro has
also moved to alter or amend its judgment under Rule 59(e).
(Docket Entry No. 28). Lexington responded, Metro replied,
and Lexington surreplied. (Docket Entry Nos. 30, 34, 37).
on a careful review of the motions, responses, replies;
surreplies; the record; the relevant law; and the arguments
of counsel, this court denies Lexington's motion to
strike Metro's experts and denies Metro's motion to
alter or amend the judgment. The reasons for these rulings
are stated below.
The Applicable Legal Standards
The Legal Standard to Alter or Amend a Judgment under Rule
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. See St. Paul Mercury
Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th
Cir. 1997) (“[T]he Federal Rules of Civil Procedure do
not recognize a general motion for reconsideration.”).
A court retains the power to revise an interlocutory order
before entering judgment adjudicating the parties'
claims, rights, and liabilities. Fed.R.Civ.P. 54(b). A Rule
59(e) motion “calls into question the correctness of a
judgment.” Templet v. HydroChem Inc., 367 F.3d
473, 478-79 (5th Cir. 2004) (citing In re Transtexas Gas
Corp., 303 F.3d 571, 581 (5th Cir. 2002)). A motion that
asks the court to change an order or judgment is generally
considered a motion to alter or amend under Rule 59(e).
eTool Development, Inc. v. Nat'l Semiconductor
Corp., 881 F.Supp.2d 745, 748-49 (E.D. Tex. 2012).
59(e) motion “‘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, 863-64 (5th Cir. 2003) (quoting
Simon v. United States, 891 F.2d 1154, 1159 (5th
Cir. 1990)). Changing an order or judgment under Rule 59(e)
is an “extraordinary remedy” that courts use
sparingly. Templet, 367 F.3d at 479; see
also 11 Wright & Miller, Federal Practice &
Procedure § 2810.1 at 124 (2d ed. 1995). The Rule 59(e)
standard “favors denial of motions to alter or amend a
judgment.” S. Constructors Grp., Inc. v.
Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). A
motion to reconsider may not be used to relitigate matters,
raise arguments, or submit evidence that could have been
presented before the judgment or order was entered. 11 Wright
& Miller § 2810.1 at 127-28 (footnotes omitted).
“Relief . . . is also appropriate when there has been
an intervening change in the controlling law.”
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563,
567(5th Cir. 2003); accord Arceneaux v. State Farm Fire
& Cas. Co., No. 07-7701, 2008 WL 2067044, at *1
(E.D. La. May 14, 2008) (“To obtain relief under Rule
59(e), the movant must (1) show that its motion is necessary
to correct a manifest error of law or fact, (2) present newly
discovered or previously unavailable evidence, (3) show that
its motion is necessary to prevent manifest injustice, or (4)
show that its motion is justified by an intervening change in
the controlling law.”) (citation omitted).
The Legal Standard to Strike Testimony of Witnesses with
Rule of Evidence 702 provides that a witness who is qualified
by knowledge, skill, experience, training, or education may