United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER DENYING CONSTRUED RULE
L. HORAN, UNITED STATES MAGISTRATE JUDGE
September 16, 2019, the Court granted Defendant Parker
University’s motion to dismiss [Dkt. No. 28] Plaintiff
Daniel Caldwell’s amended complaint [Dkt. No. 25] and
entered judgment dismissing this action with prejudice,
see Dkt. Nos. 39 & 40. Two days later, Caldwell
filed Objection to Order, and Motion to Vacate and
Reconsider. See Dkt. No. 41.
motion asking the court to reconsider a prior ruling is
evaluated either as a motion to ‘alter or amend a
judgment’ under [Federal Rule of Civil Procedure] 59(e)
or as a motion for ‘relief from a final judgment,
order, or proceeding’ under [Federal Rule of Civil
Procedure] 60(b). The rule under which the motion is
considered is based on when the motion was filed.”
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182
n.2 (5th Cir. 2012) (per curiam) (citing Tex. A&M
Research Found. v. Magna Transp., Inc., 338 F.3d 394,
400 (5th Cir. 2003)). If, like here, “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.” Id.; see also Hanna v.
Maxwell, 548 Fed.Appx. 192, 195 (5th Cir. 2013) (per
curiam) (“Hanna’s pleadings at the district court
were not models of precision, but we construe them liberally
because he is proceeding pro se. However Hanna
labeled his motion, it clearly evinced a desire for the court
to reconsider its judgment, and it was filed within the
28-day time limit for filing Rule 59(e) motions.”
Under Rule 59(e), amending a judgment is appropriate (1)
where there has been an intervening change in the controlling
law; (2) where the movant presents newly discovered evidence
that was previously unavailable; or (3) to correct a manifest
error of law or fact. Schiller v. Physicians Res. Grp.
Inc., 342 F.3d 563, 567 (5th Cir. 2003). A motion under
Rule 59 cannot be used to raise arguments or claims
“that could, and should, have been made before the
judgment issued.” Marseilles Homeowners Condo.
Ass’n v. Fidelity Nat. Ins. Co., 542 F.3d 1053,
1058 (5th Cir. 2008).
Demahy, 702 F.3d at 182 (footnote omitted).
“[i]n school yard parlance, ” a motion for
reconsideration is not “a request for a ‘do
over.’” Green v. City of New York, No.
05-cv-0429 (DLI)(ETB), 2006 WL 2516468, at *2 (E.D.N.Y. Aug.
29, 2006); see also Deerskin Trading Post, Inc. v. United
Parcel Serv. of Am., Inc., 972 F.Supp. 665, 674 (N.D.Ga.
1997) (“[A] motion for reconsideration is not an
opportunity for the moving party and their counsel to
instruct the court on how the court could have done it better
the first time.” (citation and internal quotation marks
has been no intervening change in controlling law. And
Caldwell presents no newly discovered evidence that was
previously unavailable. So the Court will consider whether
the judgment should be amended to correct a manifest error of
first, because, with the consent of the parties, this action
is before the undersigned United States magistrate judge for
all purposes under 28 U.S.C. § 636(c), see Dkt.
No. 21, the Court rejects Caldwell’s reliance on
Federal Rule of Civil Procedure 72(b) as a basis under which
to review the September 16, 2019 memorandum opinion and order
to the extent that Caldwell argues that the Court ignored his
claims by attempting to show that the Court did not address
arguments – presented as claims – made in
Caldwell’s own motions or in his briefing in response
to Parker’s motions, including his unauthorized
sur-reply, which the Court denied leave to file, see
Dkt. Nos. 34, 35, & 36, Caldwell may not amend his claims
through a filing that is not itself a pleading, see,
e.g., Klaizner v. Countrywide Fin., No. 2:14-CV-1543 JCM
(PAL), 2015 WL 627927, at *10 (D. Nev. Feb. 12, 2015)
(“All claims for relief must be contained in a
pleading. A response to a motion is not a pleading and it is
improper for the court to consider causes of action not
contained in the pleadings.” (citing Fed.R.Civ.P. 8(a);
Caldwell chiefly argues that “[t]he Court’s
opinion/judgment are entirely silent on and void of any
reference to Caldwell’s timely claim for breach of
fiduciary duty ... imposed by 20 U.S.C. 1091b.” Dkt.
Court was not silent as to this provision of federal law,
contained in the Higher Education Act, 20 U.S.C. § 1070,
et seq. (the “HEA”). See Mission
Grp. Kan., Inc. v. Spellings, 515 F.Supp.2d 1232,
1235-36 (D. Kan. 2007) (“In 1992, Congress
re-authorized and amended HEA. In doing so, it adopted the
so-called ‘pro rata refund’ provision. 20 U.S.C.
§ 1091b. The provision applied to first-term first-year
students who dropped out before completing the period for
which they had received federal aid.
allowed the institution to retain any amount which it had
earned, but required it to refund to the student - or to
[Federal Student Aid] if it had provided loans or grants - a
pro rata portion of the aid disbursed to the student."
as the Court has explained to Caldwell, see Dkt.
Nos. 24 & 39,
[a]s to claims under the [HEA] by student borrowers against
educational institutions, "the [HEA] specifies that the
Secretary of Education has the power to carry out the
Act's purposes; the Secretary has promulgated numerous
and comprehensive regulations that regulate educational
institutions' compliance with the [HEA]; and the statute
and legislative ...