Opinion
Civ. No. 98-3445, SECTION: E/2.
February 23, 2000.
ORDER AND REASONS
On December 8, 1999, defendant Chalmette Medical Center, Inc., filed a motion for summary judgment, which was initially noticed for hearing on December 29, 1999. The Court continued the motion, resetting it on January 12, 2000. Plaintiff, who is proceeding pro se, did not respond to this motion in any way. The Court considered the motion, and based upon the evidence in the record, granted the motion, and entered judgment in favor of the defendant on January 13, 2000.
On January 24, 2000, plaintiff sent the court a letter, in which she states, in relevant part:
I received a notice stating that my case was dismissed. I was not aware that I had to respond to a summary judgment or any other legal action because I am not an attorney, and I still have been unable to find one. On October 13, 1999 I appeared in court and ask for the judge to appoint me an attorney and that motion was denied. . . . I have still been diligently looking for an attorney to take my case. There is no way that I would leave a 20 year career unless, the conditions were unbearable, and I honestly feel that I should have the opportunity to have my day in court. So, I ask the court to please reconsider dismissing my case.
I have an appointment to see an attorney on January 27th. This is a matter that I have taken very seriously because my life has been greatly affected. Again, I ask the court to reconsider dismissing my case at least until I meet with the attorney on January 27th.
Rec. Doc. No. 28.
The letter was treated as plaintiff's motion for reconsideration of the Court's ruling granting summary judgment, and set it for consideration on the record on February 23, 2000, without oral argument. The order stated that if plaintiff wanted to supplement her motion with any additional information, "she must do so in writing on or before February 11, 2000 by filing it and furnishing a copy of it to opposing counsel." Rec. Doc. No. 29. Plaintiff did not supplement her motion with any additional information, even though she was provided an opportunity to do so. Defendant filed a memorandum in opposition to plaintiff's motion for reconsideration.
The court in Anderson v. Red River Waterway Commission, 16 F. Supp.2d 682 (W.D. La. 1998), summarized generally the appropriate standard for deciding motions for reconsideration, as follows:
The Federal Rules of Civil Procedure do not provide a mechanism with which a party may file a `motion to reconsider.' United States v. Emmons, 107 F.3d 762, 764 (10th Cir. 1997) . . . . District courts will `often accept such motions in the interest of substantial justice.' Baustian v. State of Louisiana, 929 F. Supp. 282, 284 (M.D. La. 1996). Although the court will consider such a motion, one `based on recycled arguments only serves to waste the resources of the court.' Id. A ruling, therefore, `should only be reconsidered where the moving party has presented substantial reasons for reconsideration.' [ State of La. v. Sprint Communications Co., 899 F. Supp. 282, 284 (M.D. La. 1995). "[R]evisiting the issues already addressed `is not the purpose of a motion to reconsider,' and `advancing new arguments or supporting facts which were otherwise available [when the original motion was filed' is likewise inappropriate.'" Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).16 F. Supp. 2d at 683. In order for the court to disturb its previous ruling, the moving party must show a change in factual circumstances or in the controlling law which would demonstrate that the prior ruling was erroneous, is no longer sound, or would work an injustice. Bardwell v. George G. Sharp. Inc., 1995 WL 517120 (Fallon, DJ) (E.D. La. 1995).
In her letter, plaintiff raises the following grounds for possible relief: (1) She was not aware that she had to respond to the summary judgment motion because she is not a lawyer; (2) Despite the fact that her husband is undergoing chemotherapy, she is diligently looking for an attorney to take her case and has appointment with an attorney on January 27th; (3) She would not have left a 20 year career unless she felt the conditions were unbearable; and (4) She feels that she would like to have the opportunity to have her day in court. Each issue plaintiff raises will be carefully considered.
The first possible basis for relief is that she was not aware that she had to respond to the summary judgment motion. A review of the record shows that on October 13, 1999, Ms. Tipado appeared before Magistrate Judge Wilkinson in this matter because she, despite being ordered twice to respond to a discovery motion, failed to do so. Rec. Doc. No. 20. The Magistrate Judge informed Ms. Tipado that she was entitled to proceed pro se if she wished, but that "you've got to comply with all of the other dates and deadlines that the Court has set." Transcript, Rec. Doc. No. 20, p. 25. During the hearing, the Magistrate Judge made it clear to Ms. Tipado that she had to respond to the various orders of the Court, and in fact, Ms. Tipado appeared that day in court because she was told by one of the attorneys she had consulted that she needed to appear and respond to the discovery motion that had been filed. A review of the transcript of that hearing before the Magistrate Judge leaves the Court with the definite conviction that the plaintiff either knew, or should have known, that she had an affirmative duty to respond to any motions or orders filed by the deadline set. Ms. Tipado's statement in the letter that because she is not an attorney, she did not know she had to respond, which would not have been a valid excuse in any case, certainly cannot be accepted.
The plaintiff's next basis for relief is that her husband is undergoing chemotherapy, but that she is still looking for an attorney. As the hearing before the Magistrate Judge establishes, Ms. Tipado has been searching for an attorney for a number of months and has spoken to a number of skilled attorneys experienced in handling this type of litigation, and none of them has agreed to take her case. Moreover, plaintiff never requested additional time to respond to the motion for summary judgment, or to find an attorney, even though, as her statements to the Magistrate Judge reflect, she was well aware that she could ask for additional time. In view of the fact that the plaintiff has been searching for an attorney for a number of months to handle her case, and has been unsuccessful, it is unlikely that additional time would prove fruitful in this endeavor.
The plaintiff argues that she would not have left a 20 year career unless she felt that the conditions at her employment were unbearable. As noted in the Court's ruling on the motion for summary judgment, "a review of the record demonstrates that it is devoid of evidence that any action was taken against her on the basis of her race. There is likewise no evidence that her working conditions were so intolerable that a reasonable employee would feel compelled to resign, or that she was subjected to an objectively race-based hostile work environment." Rec. Doc. No. 20. As the Magistrate Judge explained to the plaintiff, this case is governed by the applicable law, and despite how strongly she might feel about it, under the law, unless plaintiff can establish that she has evidence to support all of the elements of her claim, her claim must be summarily dismissed.
Finally, plaintiff suggests that she believes she is entitled to her day in court. Plaintiff has had her day in court. She filed her complaint, was afforded an opportunity to conduct discovery, provided with notice and an opportunity to respond to various orders and motions, and was granted a continuance to provide discovery responses by the Magistrate Judge, who reversed monetary sanctions previously imposed when the plaintiff failed to respond to contempt motions. If plaintiff has evidence with which to support her claim, she had a meaningful opportunity to present it, and has failed to do so.
The Court finds that the plaintiff has failed to demonstrate cause for the Court to reconsider its previous ruling. No additional evidence or substantial change in the law has been presented, no injustice will result, nor is the prior ruling erroneous.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of plaintiff Joshulyn Tipado for reconsideration of the Court's ruling granting summary judgment be and is hereby DENIED.
New Orleans, Louisiana, February 23, 2000.
MINUTE ENTRY BARBIER, J. FEBRUARY 18, 2000