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Carr v. The City of Spring Valley Village

United States District Court, S.D. Texas, Houston Division

April 25, 2019

LAKITA CARR, Individually and As Representative of the ESTATE OF DARRALL THOMAS, and ANGELINA LEFFYEAR, As Next Friend for D.T., JR., Plaintiffs,
v.
THE CITY OF SPRING VALLEY VILLAGE; THE CITY OF HEDWIG VILLAGE; MEMORIAL VILLAGE, AXON formerly TASER INTERNATIONAL; JOSEPH DARREHSHOORI, In His Individual Capacity; TRENT B. WOOD, In His Individual Capacity; NATHAN FRAZIER, In His Individual Capacity; RICHARD ANTONIO HERNANDEZ, In His Individual Capacity; CARLOS PINEDA, In His Individual Capacity; ERIC SILLIMAN, In His Individual Capacity; MANNY AGUILAR, In His Individual Capacity; DONALD NOWLIN, In His Individual Capacity; MARK STOKES, In His Individual Capacity; JERRY HANSON, In His Individual Capacity; and STEPHEN SANFORD, In His Individual Capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         Plaintiffs, Lakita Carr and Angelina Leffyear, brought this action against numerous defendants for violation of civil rights guaranteed by the Fourth and Fourteenth Amendments under 42 U.S.C. § 1983, and for negligence, wrongful death, and survival claims under Texas law arising from the May 31, 2016, death of Darrall Thomas. On March 20, 2019, the court entered a Memorandum Opinion and Order (Docket Entry No. 15) granting motions to dismiss filed by defendants Spring Branch Independent School District ("SBISD"), Scott Williams ("Williams"), and Jerry Hanson ("Hanson") (collectively, "the SBISD Defendants") (Docket Entry No. 7), and by defendants Carlos Pineda ("Pineda"), Stephen Sanford ("Sanford"), Eric Silliman ("Silliman"), Donald Nowlin ("Nowlin"), City of Hedwig Village ("CHV") and City of Spring Valley Village ("CSW") (Docket Entry No. 8); denying plaintiffs' requests to amend; and concluding that the claims asserted against all other defendants should be dismissed for want of prosecution under Federal Rule of Civil Procedure 4 (m) because plaintiffs failed to file proofs of service for any defendants. On March 20, 2019, the court also entered a Final Judgment (Docket Entry No. 16) dismissing with prejudice the claims asserted against the defendants who had filed motions to dismiss and dismissing without prejudice the claims asserted against all other defendants. Pending before the court is Plaintiffs' Motion for New Trial, to Reinstate and Reopen Case ("Plaintiffs' Motion for New Trial") (Docket Entry No. 18), to which the SBISD Defendants have responded.[1] For the reasons stated below, plaintiffs' motion for new trial, to reinstate and reopen will be denied.

         I. Standard of Review

         Plaintiffs' Motion for New Trial does not cite the legal authority pursuant to which plaintiffs seek relief. The timing of plaintiffs' motion challenging the court's ruling determines how their motion should be evaluated.

A motion asking the court to reconsider a prior ruling is evaluated either as a motion to "alter or amend a judgment" under Rule 59(e) or as a motion for "relief from a final judgment, order, or proceeding" under Rule 60(b). The rule under which the motion is considered is based on when the motion was filed. . . . If the motion was filed within twenty-eight days after the entry of the judgment, the motion is treated as though it was filed under Rule 59, and if it was filed outside of that time, it is analyzed under Rule 60.

Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012) (per curiam), cert, denied, 134 S.Ct. 57 (2013) (citing Texas A&M Research Foundation v. Magna Transportation, Inc., 338 F.3d 394, 400 (5th Cir. 2003)). Because the pending motion was filed on the twenty-eighth day after the Final Judgment was entered, the court will consider it under Rule 59(e).

         Rule 59(e) motions "serve[] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence." Templet v. HydroChem, Inc., 367 F.3d 473, 479 (5th Cir. 2004), cert, denied, 125 S.Ct. 411 (2005). A Rule 59(e) motion "`calls into question the correctness of a judgment'" and "is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment." Id. at 478-79. Relief under Rule 59(e) is an "extraordinary remedy that should be used sparingly." Id. at 4 79.

         II. Plaintiffs' Motion for New Trial

         A. Background

         On July 25, 2018, this action was removed from the 281st District Court of Harris County, Texas, where it was originally filed on May 31, 2018, under Cause No. 2018-36505.[2] The Notice of Removal states that the following defendants were served, agreed to removal, and removed this action within thirty days of having been served: Sanford, CHV, CSW, Silliman, Nowlin, and Pineda.[3] The Notice of Removal also states that" [n] o other Defendant has been served with process in the state action."[4]

         On August 7, 2018, the court issued an Order for Conference and Disclosure of Interested Parties (Docket Entry No. 3, p. 2 ¶ 9) that included the following notice to the plaintiffs:

Fed. R. Civ. P. 4(m) requires defendant(s) to be served within 90 days after the filing of the complaint. The failure of plaintiff(s) to file proof of service within 90 days after the filing of the complaint may result in dismissal of this action by the court on its own initiative without further notice.[5]

         On August 22, 2018, plaintiffs filed Plaintiffs' Amended Complaint (Docket Entry No. 6).

         On August 31, 2018, the SBISD Defendants appeared in this action by filing a motion to dismiss.[6] On September 21, 2018, plaintiffs filed a response to the SBISD Defendants' Motion to Dismiss in which they argued the adequacy of their amended complaint and asked for leave to amend if needed.[7] On September 28, 2018, the SBISD Defendants filed a reply.[8]

         On September 5, 2018, the following six defendants filed a motion to dismiss: Pineda, Sanford, Silliman, Nowlin, CHV, and CSW.[9] On September 26, 2018, plaintiffs filed a response to these six defendants' motion to dismiss in which they argued the adequacy of their amended complaint and asked for leave to amend if needed.[10]On October 2, 2018, these six defendants filed a reply in support of their motion to dismiss.[11]

         On March 20, 2019, the court entered a Memorandum Opinion and Order (Docket Entry No. 15) that granted the two motions to dismiss the claims that plaintiffs asserted in their Amended Complaint against six of the individual defendants (Hanson, Williams, Pineda, Sanford, Silliman, and Nowlin) and three of the municipal defendants (CHV, CSW, and SBISD); denied the plaintiffs' requests for leave to amend; and concluded that the remaining claims asserted in Plaintiffs' Amended Complaint should be dismissed for want of prosecution under Federal Rule of Civil Procedure 4 (m) because plaintiffs failed to file proof of service for any of the remaining defendants.[12] The court also entered a Final Judgment (Docket Entry No. 16) dismissing with prejudice the claims asserted against the defendants who had filed motions to dismiss, i.e., individual defendants Hanson, Williams, Pineda, Sanford, Silliman, and Nowlin, and municipal defendants CHC, CSW, and SBISD; and dismissing without prejudice the claims asserted against the defendants for whom plaintiffs had not filed proof of service, i.e., City of Memorial Village ("CMV"), Axon, City of Spring Valley Village Officers Joseph Darrehshoori ...


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