Opinion
SA-05-CR-108-RF.
June 21, 2006
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION
BEFORE THE COURT is Defendant's Motion for Reconsideration (Docket No. 32), filed May 15, 2006. After due consideration, the Court is of the opinion that the Motion should be DENIED.
BACKGROUND
The parties agree that this case is governed by the standard set forth in Duren v. Missouri. In that case the United States Supreme Court stated that in order to establish a prima facie violation of the fair cross-section requirement, Defendant must show: "(1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process." The parties agree that Defendant is able to satisfy the first prong of his prima facie case. However, whether he can meet the second and third prongs is disputed.
439 U.S. 357 (1979).
Id. at 364.
In his Motion to Dismiss the Indictment, Defendant argued that dismissal of the indictment was warranted based on the jury selection plan in the San Antonio Division of the Western District of Texas that was operating when the jury in this matter was selected. Defendant further asserted that the San Antonio Division selection process excludes Hispanics and Blacks, in violation of the Sixth Amendment and the Jury Selection and Service Act. On May 12, 2006, the Court entered an Order Denying Defendant's Motion to Dismiss the Indictment (Docket No. 31). Defendant filed this Motion for Reconsideration to reiterate his arguments regarding the second and third prongs of the Duren test.
The Federal Rules of Civil Procedure do not provide a mechanism by which a party may file a "motion to reconsider." Motions seeking reconsideration of the Court's ruling and filed within 10 days of the entry of summary judgment will, therefore, be construed as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e). Because such motions are disfavored, a movant of a Rule 59(e) motion to reconsider must show: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice. Such motions grounded upon newly discovered evidence will not be granted unless the movant shows: (1) the facts discovered are of such a nature that they would probably change the outcome; (2) the facts alleged are actually newly discovered and could not have been discovered earlier by proper diligence; and (3) the facts are not merely cumulative or impeaching. A Rule 59(e) motion may not be used to relitigate old matters, raise arguments, or present evidence that could have been raised prior to entry of judgment. The district court has "considerable discretion" in deciding whether to grant a rule 59(e) motion.
See FED.R.CIV.P. 59(e); see also Mangieri v. Clifton, 29 F.3d 1012, 1015 n. 5 (5th Cir. 1994); Harcon Barge Co. v. D G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc).
In re Benjamin Moore Co., 318 F.3d 626, 629 (5th Cir. 2002); Burton v. Buckner Children and Family Services, Inc., WL 22169771, *1-*2 (N.D.Tex. Aug. 18, 2003).
See Infusion Resources, Inc. v. Minimed, Inc., 351 F.3d 688, 696-697 (5th Cir. 2003); English v. Mattson, 214 F.2d 406, 409 (5th Cir. 1954).
Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003); Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (citations omitted).
Lavespere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990).
Defendant's Motion to Reconsider is being used purely to relitigate old matters. Defendant's Motion does not raise any arguments that the Court should reconsider its ruling because of (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or prevent manifest injustice. Instead, Defendant reasserts each of his prior arguments and expresses his disagreement with and disapproval of the Government's arguments in its Response to Defendant's Motion to Dismiss the Indictment. The Court appreciates defense counsel's diligent efforts on this matter, however, there are not sufficient grounds to warrant reconsideration of the Order Denying Defendant's Motion to Dismiss. For these reasons, as well as those stated in the Order Denying Defendant's Motion to Dismiss, the Court is of the opinion that Defendant's Motion for Reconsideration (Docket No. 32) should be DENIED.
In re Benjamin Moore Co., 318 F.3d 626, 629 (5th Cir. 2002); Burton v. Buckner Children and Family Services, Inc., WL 22169771, *1-*2 (N.D.Tex. Aug. 18, 2003).
It is so ORDERED.