United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE
2015, an off-duty Houston Police Officer, Thomas Harris, shot
Helder Flores at an apartment complex in Houston. Flores sued
Officer Harris, another officer on the scene that night,
Officer Anton Mawhood, and the City of Houston. (Docket Entry
Nos. 1-1, 6, 78). The officers and the City separately moved
for summary judgment, and Flores filed identical responses to
both motions. (See Docket Entry No. 112, 113). The
court granted summary judgment for the City and the Officer
Mawhood but denied summary judgment as to Flores's
excessive-force claims against Harris. (Docket Entry No.
129). Flores now moves for reconsideration of the court's
March 2019 Memorandum and Order granting summary judgment to
the City. (Docket Entry No. 150). The City responded and
filed objections to Flores's exhibits, and Flores
replied. (Docket Entry Nos. 156, 161, 162).
on the motion, response, and reply; the applicable law; and
the relevant record, the Court denies Flores's motion for
reconsideration. (Docket Entry No. 150). The reasons for this
ruling are detailed below.
alleged that in July 2015, Officer Harris shot him in the
back at La Estancia Apartments in Houston. (Docket Entry No.
78). Flores sued Officers Harris and Mawhood and the City of
Houston, bringing claims under 42 U.S.C § 1983 for
alleged violations of the Fourth and Fourteenth Amendments.
He alleged that the City violated his constitutional rights
by: failing to adequately investigate the shooting, punish
Officers Harris or Mawhood, or train and discipline its
officers who use deadly force; discriminating against him
based on his race; denying him timely medical care; and
ratifying Harris's alleged misconduct. (Id. at
January 2019, the City and the officers separately moved for
summary judgment. (Docket Entry Nos. 100, 102). Flores
responded to both motions and filed supporting exhibits,
including Exhibit L, which was a compilation of 23
administrative reports by the Houston Police Department
Internal Affairs Division. (See Docket Entry Nos.
112-14, 114-11, 115-10). The responses were identical and did
not address the City's arguments for summary judgment.
(See Docket Entry No. 112, 113). Because Flores did
not file Exhibit L under seal as required under the
parties' protective order, the court struck the exhibit
but noted that “[t]here is no basis to believe that the
analysis or outcome would change” if it were
considered. (Docket Entry No. 129 at 17).
March 2019, the court granted the City's summary judgment
motion and granted in part and denied in part the
officers' summary judgment motion, leaving only Harris as
a defendant. (Id.). The court concluded that Flores
had not offered or pointed to evidence showing a municipal
policy, practice, or custom that could make the City liable
under § 1983 for the shooting. (Id. at 45-62).
2019, Flores moved under Federal Rules of Civil Procedure
54(b), 59(e), and 60(b)(6) for reconsideration of the
court's March 2019 Memorandum and Order granting the
City's summary judgment motion. (Docket Entry No. 150).
Flores argues that new evidence shows that the court should
have denied the motion. The City argues that the motion for
reconsideration fails because Flores did not timely file it;
has not offered or pointed to newly discovered summary
judgment evidence showing genuine factual disputes material
to the issue of municipal liability; and has shown neither
manifest injustice nor extraordinary circumstances justifying
reconsideration. (Docket Entry No. 155 at 7).
The Legal Standard
Federal Rules of Civil Procedure do not formally recognize a
motion to reconsider. 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.”).
Motions to reconsider that seek to amend a final judgment are
treated as motions to alter or amend a judgment under Federal
Rule of Civil Procedure 59(e), or motions for relief from
judgment under Rule 60(b), depending on when the motion is
filed. Demahy v. Schwarz Pharm. Inc., No. 11- 31073,
2012 WL 5261492, at *2 n.2 (5th Cir. Oct. 25, 2012) (citing
Tex. A & M Research Found. v. Magna Transp.,
Inc., 338 F.3d 394, 400 (5th Cir. 2003)). A motion for
reconsideration is considered under Rule 59(e) if it is filed
within 28 days of the court's ruling, and under Rule
60(b) if it is filed after that. Demahy, 2012 WL
5261492, at *2 n.2 (citing Tex. A&M, 338 F.3d at
400). However, Rule 54(b) applies to motions to reconsider
interlocutory orders that do not dispose of every claim or
resolve the rights of all parties to the litigation.
Fed.R.Civ.P. 54(b); Austin v. Kroger Texas, L.P.,
864 F.3d 326, 336 (5th Cir. 2017). This motion is considered
under Rule 54(b).
Rule 54(b), the court may “reconsider, rescind or
modify an interlocutory order for a cause seen by [the court]
to be sufficient.” Stoffels ex rel. SBC Telephone
Concession Plan v. SBC Commc'ns, Inc., 677 F.3d 720,
726 (5th Cir. 2012). In reviewing a Rule 54(b) motion,
“the trial court is free to reconsider and reverse its
decision for any reason it deems sufficient, even in the
absence of new evidence or an intervening change in or
clarification of the substantive law.” Austin,
864 F.3d at 336 (quoting Lavespere v. Niagara Mach. &
Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990),
abrogated on other grounds, Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 n.14 (5th Cir. 1994) (en
banc)). “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.” Arceneaux v. State Farm Fire
& Cas. Co., No. 07-7701, 2008 WL 2067044, at *1
(E.D. La. May 14, 2008).
Rule 54(b) motions to reconsider interlocutory orders are
considered more leniently than motions filed under the more
exacting Rule 59(e) standard, the Rule 59(e) factors offer
guidance. See Livingston Downs Racing Ass'n v.
Jefferson Downs Corp., 259 F.Supp.2d 471, 474-75 (M.D.
La. 2002). Under Rule 59(e), 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 Charles Alan Wright et al., Federal
Practice and Procedure § 2810.1 (3d ed.).
The Timeliness of Flores's Motion
City explains that the motion was filed 73 days after the
March 2019 Memorandum and Order, which is more than the
“28-days after the entry of judgment” allowed for
motions for reconsideration under Rule 59(e). (Docket Entry
No. 155 at 10 (citing Fed.R.Civ.P. 59(e))). According to the
City, the motion is untimely, even under Rule 60(b), because
Flores's “motion for reconsideration is nothing
more than his untimely response to the City's summary
judgment” and “[h]e could have and should have
presented his arguments” when the court was considering
that motion. (Id.).
motion is properly considered under Federal Rule of Civil
Procedure 54(b), which does not limit the time in which the
court may revise any order. Fed.R.Civ.P. 54(b).
“‘Interlocutory orders,' such as grants of
partial summary judgment, ‘are not within the
provisions of 60(b), but are left within the plenary power of
the court that rendered them to afford such relief from them
as justice requires.'” McKay v. Novartis Pharm.
Corp., 751 F.3d 694, 701 (5th Cir. 2014) (quoting
Zimzores v. Veterans Admin., 778 F.2d 264, 266 (5th
Cir. 1985)). Because the March 2019 Memorandum and Order did
not adjudicate “the claims or the rights and
liabilities” of all the parties, it was an
interlocutory order that may be amended under Rule 54(b).
Flores's timing in moving for reconsideration is an
insufficient basis to deny his motion.
Flores's Request for Rulings on His Objections to the
Defendants' Summary Judgment Evidence
first asks the court to rule on his objections to evidence
the defendants filed with their summary judgment motions.
(Docket Entry No. 150 at 8). He asserts that “[t]here
was no ruling” on his objections, but he does not point
to any arguments made before the court's March 2019
Memorandum and Order that raised these evidentiary objections
for any rulings. (Id.). His response to the
City's summary judgment motion was a copy of his response
to Officer Harris's summary judgment motion, which did
not include the objections listed in his motion for
reconsideration. Instead, that response raised as its sole
evidentiary issue whether the lack of footage from the La
Estancia surveillance camera showed spoliation. (Docket Entry
No. 113 at 15).
Rule of Civil Procedure Rule 56(e) and the Federal Rules of
Evidence govern the submission of evidence in a summary
judgment motion. See, e.g., Diamond Offshore Co.
v. A&B Builders, Inc., 302 F.3d 531, 544 n.13 (5th
Cir. 2002) (discussing the district court's application
of Rule 56(e) and the rules of evidence on a summary judgment
motion). Under Federal Rule of Civil Procedure 56(e) provides
that “[s]upporting and opposing affidavits shall be
made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters
stated therein.” Under Federal Rule of Evidence 602, a
witness's testimony may not be considered unless it is
based on personal knowledge. See Cormier v. Pennzoil
Expl. & Prod. Co., 969 F.2d 1559, 1561 (5th Cir.
1992). The rules governing hearsay also apply. See
Fed. R. Civ. P. 56(e); Fed.R.Evid. 802 (“Hearsay is not
admissible except as provided by these rules or by other
rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.”).
these objections for the first time, the court concludes that
they are not a basis to reconsider the admissibility of the
City's summary judgment evidence. Flores offers no
arguments in support of his objections, instead labeling each
exhibit with conclusory “hearsay” or
“relevance.” (Docket Entry No. 150 at 8);
see, e.g., Hoffman v. Bailey, 257 F.Supp.3d
801, 824 (E.D. La. 2017) (“It is not the Court's
responsibility to comb through the record to determine the
basis for Hoffman's cursory objections or to make
arguments on his behalf. Accordingly, the Court denies
Hoffman's objections to all of Bailey's exhibits at
this time.” (footnote omitted)); Itani v. Viant,
Inc., No. 4:10-CV-852-Y, 2012 WL 13019683, at *2 (N.D.
Tex. Sept. 4, 2012) (“Concerning Itani's remaining
objections to Aetna's ...