Opinion
CIVIL ACTION No. 04-0010 SECTION "K"(1)
May 21, 2004
MINITE ENTRY
Before the Court is a Motion for New Trial (Rec. Doc. 8) filed by plaintiffs Terry Hollowell and Jill Hollowell. Having reviewed the pleadings, memoranda and relevant law, the Court GRANTS plaintiffs' motion for reasons assigned below.
I.BACKGROUND
On December 23, 2003, plaintiffs filed the instant action in the Twenty-Third Judicial District Court for the Parish of St. James, State of Louisiana, for damages arising from an accident in which plaintiff Terry Hollowell fell approximately forty (40) feet from atop the #1 tertiary tray at Kaiser's facility in Gramercy, Louisiana. At the time of the accident, Terry Hollowell was directly employed by Kaiser as a maintenance repairer. Following the accident, Kaiser paid plaintiff's workers' compensation benefits and medical expenses.
On January 2, 2004, Kaiser removed this action from the Twenty-Third Judicial District Court for the Parish of St. James to this Court, and filed its answer on the same day. See Rec. Doc. 1. Later that month, on January 30, 2004, Kaiser filed a Motion for Summary Judgment (Rec. Doc. 5) based on the exclusivity provisions of the Louisiana Workers' Compensation Act, La.Rev.Stat. 23: 1031, et seq. Hearing was scheduled for February 18, 2004. After plaintiffs failed to file an opposition, this Court granted defendant's motion for summary judgment on the merits, on March 10, 2004. See Hollowell v. Kaiser Aluminum and Chemical Corporation, 2004 WL 515706 (E.D. La. 2004) (Rec. Doc. 6).
Plaintiffs contend that the Court's granting of summary judgment violated their procedural due process rights because they did not receive notice of the actual filing of the motion, or of the hearing date. In support, plaintiffs' counsel has submitted the sworn Affidavit of Linda Barker, the secretary who handles all telephone calls, mail, and facsimiles for plaintiffs' counsel. Therein, Barker attested that plaintiffs' counsel "did not receive any Notice of the actual filing of the Motion for Summary Judgment nor did this office receive Notice from any counsel of record that the Motion for Summary Judgment was filed, nor did this office receive any facsimile from anyone concerning this Motion for Summary Judgment Hearing actually being set on [February 18, 2004]."
On the other hand, defendant claims to have mailed plaintiffs' counsel the Motion for Summary Judgment, an accompanying Memorandum, a Statement of Uncontested Facts, and a Notice of Hearing on January 30, 2004. Defendant offers the sworn Affidavit of defense counsel's secretary, Gayle Catalano, in support of these claims. Catalano stated that she mailed the aforementioned motion and related materials to plaintiff's attorney on January 30, 2004, per her usual custom, along with a letter stating the following: "Enclosed is a copy of the Motion for Summary Judgment which we are filing today in the instant matter."
Although the parties dispute whether plaintiffs received notice of the actual filing and hearing date of the motion, plaintiffs's counsel does not deny that received the motion or that he discussed the motion and the date set for hearing with counsel for the defendant.
II. LEGAL STANDARD ANALYSIS
Because this case was initially disposed of through defendant Kaiser's motion for summary judgment, plaintiffs' "Motion for New Trial" should more properly be designated as a motion to alter or amend a judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Ferguson v. Barnhart, 2003 WL 21714987, at * 1 (E.D.La. 2003), (quoting Peterson v. CIGNA Group Ins., 2002 WL 1268404 (E.D.La. 2002)). See St. Paul Mercury Insurance Company v. Fair Grounds Corp., et al., 123 F.3d 336, 339 (5th Cir. 1997) (motion to alter or amend under Rule 59(e) is proper motion to contest summary judgment); Patin v. Allied Signal Inc., 77 F.3d 782, 785 n. 1 (5th Cir. 1990) (motion to reconsider entry of summary judgment properly styled a Rule 59(e) motion); Laverspere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 175 (5th Cir. 1990) (motion that challenges prior summary judgment filed within 10 days of judgment is brought under Rule 59(e)).
This Court has recognized four grounds upon which a Rule 59(e) motion may be granted: (1) to correct manifest errors of law or fact upon which judgment is based, (2) the availability of new evidence, (3) the need to prevent manifest injustice, or (4) an intervening change in controlling law. Peterson v. CIGNA Group Ins., 2002 WL 1268404, at *2. The Court has further recognized that "[r]econsideration of a judgment is an extraordinary remedy which courts should use sparingly," id., ( see Wright, Miller Kane, Federal Practice Procedure: Civil 2d § 2810.1, p. 124; Fields v. Pool Offshore, Inc., 1993 WL 43217 (E.D.La. 2/3/1998); Bardwell v. Sharp, 1995 WL 517120, at 1 (E.D.La.8/30/1995), and the Fifth Circuit Court of Appeals has instructed that the standard for Rule 59(e) "favors denial of motions to alter or amend a judgment," Id. (quoting Southern Contractors Group, Inc., v. Dynalectric Company, 2 F.3d 606, 611 (5th Cir. 1993)).
Because this is a motion to alter or amend a summary judgment, the Fifth Circuit standard for Rule 59(e) motions must be tempered by the procedural safeguards of Rule 56 and Local Rule 7. Rule 56(c) provides that a motion for summary judgment must be served at least 10 days before the time fixed for the hearing. Local Rule 7.2E supplements the Federal Rules of Civil Procedure, requiring that at least fifteen days actual notice of hearing must be given to counsel opposing a civil motion.
The Fifth Circuit has repeatedly frowned upon the granting of summary judgment without providing notice or a hearing to the plaintiff. In Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 402 (5 th Cir. 1998), the Court held that a "ruling on a motion for summary judgment without providing either notice or a hearing 'cut[s] off [a] plaintiff's opportunity to develop a record on which the court could fairly rule on the merits of his complaint' and, thus, constitutes error" (quoting Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir. 1976)). Kibort v. Hampton, 538 F.2d at 91, the case upon which the Winters Court relies, involved a motion to dismiss or, in the alternative, a motion for summary judgment. With no notice or request for bearing, and with no further communications of record between the parties and the court, the district court granted the motion for summary judgment. The Fifth Circuit subsequently vacated and remanded summary judgment because "the plaintiff received neither notice or a hearing," and because "[t]here was no reason for the plaintiff to suspect that the court was about to rule on the motion." Id.
Lack of notice of a court's intent to consider a motion for summary judgment can constitute reversible error. In NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957, 964 (5th Cir. 1991), the Fifth Circuit reversed and remanded the district court's summary judgment ruling because such a ruling is proper only upon notice to the adverse party. The court further explained that "[a]ny reasonable doubts about whether [the adverse party] received notice that its entire case was at risk must be resolved in favor of [the adverse party]." Id.
Plaintiffs' base their motion on the assertions that their counsel "received no notice of the hearing scheduled for February 18, 2004," "no notice whatsoever that the motion was actually filed," and "no notice from opposing counsel that the date of February 18, 2004 had been set." Plaintiffs' counsel does not, however, argue that he did not receive notice, and thus had no reason to suspect that defendant's motion for summary judgment would be ruled upon. He admits that he "discussed the filing of the motion for Summary Judgment with opposing counsel before (pre-filing) the filing of the Motion for Summary Judgment implying a conflict on that date would occur with present counsels trial calendar" [sic]. Motion For New Trial at 1. Nor does he deny receiving a copy of defendant's Motion for Summary Judgment and attached notice dated January 30, 2004, stating that the motion was being filed that same day. Rather, plaintiffs' counsel argues that he "received no notice of the hearing scheduled for February 18, 2004," "no notice whatsoever that the motion was actually filed," and "no notice from opposing counsel that the date of February 18, 2004 had been set." Based on these facts, it appears that the instant case does not come under any of the recognized Rule 56 exceptions to the Rule 59(e) standard.
Nevertheless, plaintiffs' motion should still be granted. Although defendant complied with Fed.R.Civ.P. 56(c) (requiring that "[t]he motion shall be served at least 10 days before the time fixed for the hearing"), as amended by Local Rule 7.2E (requiring that "motions must be filed not later than the fifteenth day preceding the notice hearing date"), Local Rule 7.2E additionally requires that "at least fifteen days actual notice of hearing must be given to opposing counsel whether notice is served by mail or delivery under FRCvP 5(b)" (emphasis added). Although defendant's counsel mailed the motion and notice on January 30, 2004, plaintiffs' counsel represents to the Court that he did not receive actual notice of hearing. Technically, under Local Rule 7.2E, if plaintiffs' counsel never received "actual notice of hearing," his clients motion must be granted.
Therefore, on technical grounds, the Court shall grant plaintiffs' Rule 59(e) motion and vacate its Judgment dismissing plaintiffs' case. However, the Court shall again address the merits of defendant's Motion for Summary Judgment and order that plaintiffs brief the issue presented therein. Thus,
IT IS ORDERED that plaintiffs' Motion for New Trial (Rec. Doc. 8) is hereby GRANTED and this Court's Minute Entry (Rec. Doc. 6) and Judgment (Rec. Doc. 7) signed March 9, 2004 are hereby VACATED. IT IS FURTHER ORDERED that defendant's Motion for Summary Judgment (Rec. Doc. 5) is hereby RESET for hearing on Wednesday, June 9, 2004. Plaintiff shall file and serve upon opposing counsel an Opposition to that motion no later than Tuesday, June 1, 2004.