United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Guillermo Murillo Molina's
(“Molina”) Motion for Reconsideration (Dkt. #65).
After reviewing the relevant pleadings and motion, the Court
finds the motion should be denied.
issue before the Court concerns the Court's decision to
grant Defendant Collin County's motion for summary
judgment. On August 18, 2017, Collin County filed its Motion
for Summary Judgment (Dkt. #31). On November 21, 2017, the
Court entered a Memorandum Opinion and Order (the
“Opinion”) granting Collin County's motion
(Dkt. #59). As a result of the Court's ruling, on
December 12, 2017, Molina filed a motion for reconsideration
(Dkt. #65). Specifically, Molina requests the Court to
reconsider its ruling as it pertains to Molina's claim
under the Texas Tort Claims Act (“TTCA”). On
January 3, 2018, Collin County filed its response (Dkt. #97)
and Molina filed his reply (Dkt. #99).
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,
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). Here, Molina filed his motion for reconsideration
within 28 days of the Court's Opinion; therefore,
Molina's motion is 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).
November 21, 2017, the Court issued its Opinion dismissing,
in pertinent part, Molina's claim under the TTCA against
Collin County (Dkt. #59). The Court's analysis in its
Opinion discussed whether Molina met its burden in
establishing the existence of actual notice. The Court
concluded that Molina did not meet his burden and that Collin
County lacked actual notice.
argues that “based on recent Texas state court
precedent” the evidence in this case supports a finding
that Collin County had actual notice (Dkt. #65 at p. 5). The
Court disagrees. Specifically, the Court finds that the
recent Texas appellate court decision is distinguishable from
the case at hand and does not constitute “an
intervening change in the controlling law.”
Milazzo, 2012 WL 1867099, at *1 (citing
Schiller, 342 F.3d 567).
101.101 requires a plaintiff give a governmental entity
notice of a claim against it “not later than six months
after the day that the incident giving rise to the claim
occurred.” Tex. Civ. Prac. & Rem. Code Ann. §
101.101(a). If the plaintiff does not provide a formal,
written notice, then the plaintiff must prove that the
governmental entity had actual notice “that death has
occurred, that the claimant has received some injury, or that
the claimant's property has been
damaged.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.101(c). “[G]overnmental entities have actual
notice when they have knowledge of (1) a death, injury, or
property damage; (2) the governmental unit's alleged
fault producing or contributing to the death, injury, or
property damage; and (3) the identity of the parties
involved.” City of Dallas v. Carbajal, 324
S.W.3d 537, 538 (Tex. 2010) (quoting Cathey v.
Booth, 900 S.W.2d 339, 341 (Tex. 1995)).
the second requirement, the Texas Supreme Court stated that
the “governmental unit [must] have knowledge that
amounts to the same notice to which it is entitled by section
101.101(a). That includes subjective awareness of its fault,
as ultimately alleged by the claimant, in producing or
contributing to the claimed injury.” Tex. Dep't
of Criminal Justice v. Simons, 140 S.W.3d 338, 347 (Tex.
2004). “It is not enough that a governmental unit
should have investigated an incident as a prudent person
would have, or that it did investigate, perhaps as part of
routine safety procedures, or that it should have known from
the investigation it conducted that it might have been at
fault.” Id. at 347-48. Further,
“[f]ault, as it pertains to actual notice, is not
synonymous with liability; rather, it implies responsibility
for the injury claimed.” Univ. of Tex. Sw. Med.
Ctr. at Dallas v. Estate of Arancibia ex rel.
Vasquez-Anrancibia, 324 S.W.3d 544, 550 (Tex. 2010).
However, “[s]tanding alone, mere knowledge that an
incident or injury has occurred does not establish actual
notice.” Univ. of Tex. Health Sci. Ctr. v.
McQueen, 431 S.W.3d 750, 755 (Tex. App.-Houston [14th
Dist.] 2014, no pet.) (citing Cathey, 900 S.W.2d at
341). “The purpose of the notice requirement is
‘to enable governmental ...