United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER REGARDING
PLAINTIFF'S MOTIONS TO AMEND THE COURT'S ORDER (ECF
NOS. 58 & 61) AND PARTIAL AMENDED ORDER REGARDING
PLAINTIFF'S MOTION TO COMPEL PRODUCTION (ECF NO.
A. TORRES, UNITED STATES MAGISTRATE JUDGE
before the Court are "Plaintiffs Motion to Amend the
Court's Order Regarding Plaintiffs Motion to Compel
Production of Documents Requested in the Plaintiffs 1st Set
of Requests for [Production] of Documents" (hereinafter,
"Motion to Amend the Court's Order" or
"original motion"), (ECF No. 58), and a duplicate
motion of the same title, filed by Plaintiff on the belief
that he had filed the original motion under the wrong
classification in the electronic case filing system. (ECF No.
In these motions, Plaintiff requests that the Court
reconsider its ruling denying as moot Plaintiffs motion to
compel Defendants to produce documents in response to Request
for Production Number 1 ("RFP 1"). (ECF Nos. 58
& 61). Defendants filed a response in opposition to the
original motion. (ECF No. 62). For the reasons set forth
below, the Court GRANTS Plaintiffs
"Motion to Amend the Court's Order," (ECF No.
58), limited to RFP 1, and AMENDS its ruling
as to RFP 1, DENYING IN PART and
GRANTING IN PART Plaintiffs motion to compel
production. The Court DENIES AS MOOT
Plaintiffs duplicate motion (ECF No. 61).
employment discrimination suit, Plaintiff claims, inter
alia, that he was wrongfully terminated from his
employment at Texas Tech University Health Sciences Center at
El Paso ("TTUHSCEP"). (ECF No. 60, at 22-25). The
history and evolving nature of this discovery dispute is
detailed in this Court's order, dated August 23, 2019,
wherein the Court granted in part and denied in part
"Plaintiffs Motion to Compel Production of Documents
Requested in the Plaintiffs 1st Set of Requests for
Production of Documents and to Postpone Deadline to Join
Additional Parties" (the "motion to compel
production"). See (ECF No. 57, at
\-$). To summarize, noting that the parties appeared
to be attempting to resolve the discovery disputes by
amending the requests and providing supplemental responses
while simultaneously briefing the Court as to their positions
on the disputes, the Court ordered the parties to confer on
the discovery disputes in an attempt to resolve them without
court order and to then update the Court as to any disputes
that remain and their respective positions on the matter.
(ECF No. 53). The parties did so, each filing separately
their positions as to each request for production (the
"supplemental briefings"). (ECF Nos. 55 & 56).
Thereafter, the Court ruled on the motion, in relevant part,
denying RFP 1 as moot on the basis that the parties appeared
to have resolved their dispute. (ECF No. 57, at 4-5, 10).
August 24, 2019, Plaintiff filed the Motion to Amend the
Court's Order, in which he claims that a comparison of
the parties' respective positions on RFP 1, as presented
in the supplemental briefings, demonstrates important
discrepancies in the scope of the request that warrants the
Court's reconsideration of its ruling based on the
appearance that the parties had resolved the dispute. (ECF
No. 58). On August 30, 2019, Plaintiff filed the duplicate
motion. (ECF No. 61).
LAW & ANALYSIS
the Federal Rules of Civil Procedure do not provide a
mechanism for pursuing a motion for reconsideration of a
nondispositive pretrial order, Rule 54(b) provides the Court
the authority to revise an order that adjudicates fewer than
all the claims or the rights and liabilities of fewer than
all the parties prior to final judgment. Courts within the
Fifth Circuit have considered such motions, applying the
standard under Federal Rule of Civil Procedure 59(e), which
applies to final judgments. See Johnson v. Home Depot
Prod. Autk, LLC, EP-17-00067-FM, 2017 WL 8751923, at *1
(W.D. Tex. Dec. 7, 2017) (citing Krim v. pcOrder.com,
Inc., 212 F.R.D. 329, 331 (W.D. Tex. 2002) (collecting
cases)); Magee v. BHP Billiton Petroleum Props. (N.A.),
L.P., No. 15-2097, 2018 WL 6566548, at *1 (W.D. La. Jan.
9, 2018) (collecting cases).
the standard for a Rule 59(e) motion to alter or amend a
judgment, the motion "must clearly establish either a
manifest error of law or fact or must present newly
discovered evidence and cannot raise issues that could, and
should, have been made before the judgment issued."
United Nat'l Ins. Co. v. Mundell Terminal Sews.,
Inc., 740 F.3d 1022, 1031 (5th Cir. 2014) (quoting
Advocare Int'l LP v. Horizon Labs., Inc., 524
F.3d 679, 691 (5th Cir. 2008) (internal quotation marks
omitted). Black's Law Dictionary defines "manifest
error" as "[a]n error that is plain and
indisputable, and that amounts to a complete disregard of the
controlling law or the credible evidence in the record."
Manifest Error, Black's Law Dictionary (11th ed.
essentially argues that the Court erred in finding the
parties were no longer in dispute as to RFP 1 and thereby
denying as moot the motion to compel production as to RFP 1.
(ECF No. 58). Accordingly, his request for reconsideration is
made on the basis of the existence of a manifest error of
fact-that the parties were no longer in dispute over RFP 1.
previously noted, the Court ordered the parties to confer and
file supplemental briefing on the discovery disputes because
of the evolving nature of the requests and supplemental
responses throughout the briefing of Plaintiffs motion to
compel production. (ECF No. 53). Specifically, the Court
the parties shall confer on the discovery disputes at issue
in [Plaintiffs motion to compel production] ... to attempt to
resolve these issues without Court order. . . . [T]hereafter,
Plaintiff shall file a supplemental briefing, updating
the Court as to what, if anything, remains in dispute and his
position on the matter. Defendants shall have seven (7)
days thereafter to file their response.
Id. at 6 (emphasis added).
discovery matter at issue is RFP 1, whereby Plaintiff
Records of the names, races, national origins of TTUHSCEP
employees who violated University policies, descriptions of
the violations, warnings, corrective actions including but
not limited to termination that such employees received, from
the time Dr. Richard ...