United States District Court, W.D. Texas, Austin Division
DEFENSE DISTRIBUTED and SECOND AMENDMENT FOUNDATION, INC., Plaintiffs,
GURBIR GREWAL, in his official capacity as New Jersey Attorney General, MICHAEL FEUER, in his official capacity as Los Angeles City Attorney, ANDREW CUOMO, in his official capacity as New York Governor, MATTHEW DENN, in his official capacity as Attorney General of the State of Delaware, JOSH SHAPIRO, in his official capacity as Attorney General of Pennsylvania, and THOMAS WOLF, in his official capacity as Pennsylvania Governor, Defendants.
PITMAN, UNITED STATES DISTRICT JUDGE
January 30, 2019, the Court granted Defendants' motions
to dismiss this case, finding that the Court lacks personal
jurisdiction over each Defendant. (Order, Dkt. 100). Now
before the Court is Plaintiffs' motion to alter or amend
that judgment. (Mot., Dkt. 102). Plaintiffs bring the motion
under Federal Rule of Civil Procedure 59(e), arguing that the
Court committed a “manifest error” (1) in
concluding that it did not have specific jurisdiction over
each Defendant and (2) in denying Plaintiffs jurisdictional
discovery and leave to amend their complaint. (Mot., Dkt.
102, at 1). Having considered the parties' submissions,
the record, and relevant law, the Court finds that the motion
should be denied.
59(e) motion “calls into question the correctness of a
judgment.” Templet v. HydroChem Inc., 367 F.3d
473, 478-79 (5th Cir. 2004). The motion must “clearly
establish either a manifest error of law or fact or must
present newly discovered evidence.” Ross v.
Marshall, 426 F.3d 745, 763 (5th Cir. 2005). Relief is
also appropriate where there has been an intervening change
in controlling law. See Schiller v. Physicians Res. Grp.
Inc., 342 F.3d 563, 567 (5th Cir. 2003).
under Rule 59(e) “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)). While a
district court has “considerable discretion” to
grant or deny a motion under Rule 59(e), reconsideration is
an extraordinary remedy that courts should use sparingly.
Templet, 367 F.3d at 479; see also In re
Goff, 579 Fed.Appx. 240, 245 (5th Cir. 2014) (“A
motion for reconsideration should only be granted in
motion is meritless and attempts to relitigate issues this
Court has already addressed. With respect to the Court's
conclusion that it lacks specific jurisdiction over any
Defendant in this case, Plaintiffs urge the Court to apply
the Fifth Circuit's holding in Wein Air Alaska, Inc.
v. Brandt, 195 F.3d 208 (5th Cir. 1999). (Mot., Dkt.
102, at 2-3). The court in that case held that the
“tortious nature” of some “communications
with a forum” can “constitute[ ] purposeful
availment.” Wein Air, 195 F.3d at 213.
Plaintiffs clarify that Wein Air is an
“iteration” of the “targeting
principle” in Calder v. Jones, 465 U.S. 783
(1984). As an initial matter, Plaintiffs could have raised
this argument before but did not do so-this alone is enough
to deny their motion with respect to the specific
jurisdiction issue. Moreover, the Court expressly addressed
Plaintiffs' “targeting argument” and
determined that under “Stroman,
Calder, and Walden, Plaintiffs have failed
to establish that any Defendant to this action has minimum
contacts with the State of Texas.” (Order, Dkt. 100, at
Nothing in Plaintiffs' motion challenges that
determination: Plaintiffs fail to discuss Stroman or
Walden at all, much less any part of the Court's
analysis of those cases or of Calder. Thus, the
Court finds that Plaintiffs have failed to show that they are
entitled to the “extraordinary remedy” of
reconsideration of the Court's specific jurisdiction
judgment for three reasons: (1) Plaintiffs could and should
have raised their Wein-Air specific jurisdiction
argument before; (2) Plaintiffs do not make any new arguments
that the Court has not already expressly addressed; and (3)
Plaintiffs do not engage the Court's analysis of
Stroman, Walden, and Calder, and
have thus failed to demonstrate a “manifest
Plaintiffs' argument that the Court committed a manifest
error in not permitting them to obtain jurisdictional
discovery or amend their complaint rests on an argument the
Court has already addressed and rejected. First, Plaintiffs
argue that the Court incorrectly concluded that it would be
“futile” to permit jurisdictional discovery about
Defendant Grewal's relationship with three gun-control
groups involved in Defense Distributed, et al., v. U.S.
Dept. of State, et al., 1:15-CV-372-RP (W.D. Tex)
(Defense Distributed I). (Mot., Dkt. 102, at 3).
Plaintiffs base their jurisdictional discovery request on the
theory that this case and Defense Distributed I
arose out of the “same general transaction, ” and
so if Grewal had an “agency relationship” with
the gun-control groups involved in Defense Distributed
I in Texas, he consented to this Court's personal
jurisdiction in this case. (See id. 3- 5
(quoting Zamarron v. Shinko Wire Co., 125 S.W.3d
132, 143 (Tex. App.-Houston [14th Dist.] 2003, pet.
denied))). This is the same argument Plaintiffs made before
in their opposition to Defendants Grewal and Denn's
motion to dismiss. (See Pls.' Resp. Grewal &
Denn Mot. Dismiss, Dkt. 73, at 14). Although Plaintiffs now
include extensive string cites providing the general rule for
when prior litigation can serve as a basis for specific
jurisdiction in subsequent litigation, this does not disguise
the fact that Plaintiffs' argument is based on the same
facts and authorities relied on in their previous attempt to
obtain jurisdictional discovery. (See Mot., Dkt.
102, at 4-5 (citing previous docket entries and Trois v.
Apple Tree Auction Ctr., Inc., 882 F.3d 485, 490 (5th
Cir. 2018)); Pls.' Resp. Grewal & Denn Mot. Dismiss,
Dkt. 73, at 14 (citing same case)). Because Rule 59(e)
“cannot be used to raise arguments which could, and
should, have been made before the judgment issued, ”
Rosenzweig, 332 F.3d at 863-64 (5th Cir. 2003), and
because Plaintiffs are simply trying to take another bite at
the apple, the Court will not exercise its
“considerable discretion” to grant the
“extraordinary remedy” of reconsidering its
decision to deny Plaintiffs' request for jurisdictional
discovery, Templet, 367 F.3d at 479.
Plaintiffs argue that the Court committed manifest error in
not permitting them to amend their complaint. Plaintiffs'
request to amend their complaint appears in the conclusion of
their response to Defendants Grewal and Denn's motion to
dismiss. (See Pls.' Resp. Grewal & Denn Mot.
Dismiss, Dkt. 73, at 20). It reads: “In the event the
Court grants the any [sic] of motions to dismiss in whole or
in part, Plaintiffs request leave to amend their complaint to
cure any defects.” (Id. (citing
Rosenzweig, 332 F.3d at 864)). However, “[a]
bare request in an opposition to a motion to dismiss . . .
without any indication of the particular grounds on which the
amendment is sought . . . does not constitute a motion”
for leave to amend. U.S. ex rel. Willard v. Humana Health
Plan of Texas Inc., 336 F.3d 375, 387 (5th Cir. 2003).
Plaintiffs' bare request “to cure any
defects” contains no “indication of the
particular grounds” for seeking leave to amend.
Id. The Court therefore concludes that it did not
commit manifest error in denying Plaintiffs leave to amend
for the reasons given above, Plaintiffs have not shown that
they are entitled to the extraordinary remedy of
reconsideration of the Court's judgment (1) that it lacks
personal jurisdiction over any Defendant to this action, or
(2) to deny Plaintiffs' request for jurisdictional
discovery or for leave to amend their complaint. IT
IS THEREFORE ORDERED that Plaintiffs' motion to
alter or amend the judgment of the Court, (Dkt. 102), is
 See Stroman Realty, Inc. v.
Wercinski, 513 F.3d 476 (5th Cir. 2008); Walden v.
Fiore, 517 U.S. 277 (2014).
 Plaintiffs also suggest that the Court
applied the heightened “particularity” pleading
standard of Federal Rule of Civil Procedure 9 rather than the
general pleading standard under Rule 8 in concluding that
Plaintiffs failed to allege sufficient facts to base personal
jurisdiction on the purported relationship between Defendants
and the gun-control groups involved in Defense
Distributed I. (See Mot., Dkt. 102, at 5).
Plaintiffs argue that “Rule 8 requires nothing but a
‘short and plain statement of the grounds for the
court's jurisdiction.'” (Id. (quoting
Fed.R.Civ.P. 8(a)(1))). No. such statement appears anywhere
in Plaintiffs' complaint, and the Court found that
Plaintiffs failed to allege any sort of relationship
between the gun-control groups and any Defendant
with respect this litigation. (Order, Dkt. 100, at 14). The