United States Court of Appeals
Fifth Circuit
F I L E D
Revised May 6, 2004
April 20, 2004
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 03-30250
LUCIEN TEMPLET, JR.; ET AL.,
Plaintiffs,
MELBA IRVIN, Individually and on Behalf of Her Minor Child, Adam
Irvin; JIMMY IRVIN, Individually and on Behalf of His Minor
Child, Adam Irvin
Plaintiffs-Appellants,
VERSUS
HYDROCHEM INC.; ET AL.,
Defendants,
HYDROCHEM INC.; HYDROCHEM INDUSTRIAL SERVICES INC.; GEORGIA GULF
CORPORATION; MASTER MAINTENANCE CORPORATION; MASTER MANAGEMENT
CORPORATION; PAYNE & KELLER COMPANY INC.; LOUISIANA INTRASTATE
GAS CO. LLC; LA INTRASTATE GAS CORP.; AMOCO PIPELINE CO.; AMOCO
ENERGY TRADING CORPORATION; XL INSURANCE CO.,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
DeMOSS, Circuit Judge.
Plaintiffs-Appellants, Melba Irvin, et al. (the “Irvins"),
appeal the granting of summary judgment by the district court for
Defendants-Appellees, and the subsequent denial of the Irvins'
Rule 59(e) motion to alter, amend, and reconsider in a toxic tort
action arising from a chemical release from Defendants' facility.
BACKGROUND AND PROCEDURAL HISTORY
This case arises out of claims brought in state court relating
to the release of a mustard gas agent at the Georgia Gulf
Corporation facility in Plaquemine, Louisiana, that occurred on or
about September 25, 1996. On November 8, 1996, suit was filed in
state district court, asserting claims against multiple defendants,
including Georgia Gulf Corporation, X.L. Insurance Company, Primex,
Ltd., HydroChem Industrial Services, Inc., Payne & Keller Company,
Inc., Master Maintenance & Construction, Inc., Amoco Energy Trading
Corporation, Louisiana Intrastate Gas Company, L.L.C., and LIG
Liquids Company, L.L.C. (collectively, the "Defendants").
On March 5, 1999, X.L. Insurance Company and Primex, Ltd.
removed the case to federal court, asserting jurisdiction under the
Convention of the Recognition and Enforcement of Foreign Arbitral
Awards pursuant to 9 U.S.C. § 201 et seq. X.L. Insurance Company
and Primex, Ltd. are foreign insurance companies who were named as
defendants in this action pursuant to the Louisiana Direct Action
Statute, LA. REV. STAT. § 22:655. The Irvins filed a motion to
remand on April 5, 1999, that was denied by the district court on
June 9, 1999.
The Irvins, who were added as additional plaintiffs to the
original state court proceeding in March and September 1997,
2
maintain that they sustained injuries as a direct and proximate
result of the negligence of the Defendants. Since joining as
plaintiffs, the Irvins have been represented by four separate sets
of attorneys. On January 7, 2002, the Irvins' second set of
counsel, Albert Bensabat and Daniel Edwards, filed a motion to
establish discovery cutoff and trial dates and/or a status
conference. On March 1, 2002, the magistrate held a status
conference where she set discovery deadlines, ordering the Irvins
to: 1) provide the Defendants with all medical reports by March 15,
2002; 2) list all treating physicians and identify all experts by
July 1, 2002; and 3) submit all expert reports by August 1, 2002.
On March 14, 2002, one day before the Irvins were ordered to
provide the Defendants all medical reports, Bensabat and Edwards
filed a motion to withdraw as counsel for the Irvins. The
following day the magistrate granted the motion to withdraw.
Thereafter, the Irvins failed to identify any experts or produce
any medical or expert reports in compliance with the court's
deadlines.
On August 22, 2002, George Tucker enrolled as counsel for the
Irvins. The district court held a status conference on August 27,
2002, that was attended by Mr. Tucker, appearing on behalf of the
Irvins. The district court judge entered an order the following
day referring the matter to the magistrate for entry of scheduling
orders and trial preparation "anticipating a trial date in March or
April 2003." On August 30, 2002, the Defendants filed a motion for
3
summary judgment and/or dismissal, asserting that the Irvins had
failed to satisfy the elements of their claim. Specifically, the
Defendants maintained that the Irvins could not, through the
requisite expert evidence, establish negligence on the part of the
Defendants, nor could they establish causation and damages. In the
alternative, the Defendants sought the dismissal of the Irvins'
claims for their failure to adhere to the court-ordered deadlines.
The Irvins did not file any opposition to the Defendants' motion
for summary judgment.
On October 30, 2002, the district court issued its ruling
granting the Defendants' motion for summary judgment. The district
court stated:
In this case, plaintiffs have alleged that they suffered
harm by exposure to the mustard gas release but have
failed to produce any evidence whatsoever of such injury.
In a toxic tort case such as this . . . medical evidence
is essential to establish harm to plaintiffs. Without
having produced any medical evidence, plaintiffs cannot
establish that they suffered damages, an essential
element of their case.
Subsequently, on November 5, 2002, George Tucker, the Irvins'
counsel, filed a motion to withdraw from the case. The district
court granted the withdrawal on November 20, 2002, and entered
judgment dismissing the Irvins' case the following day.
On December 6, 2002, the Irvins obtained new counsel, who
immediately filed a Fed. R. Civ. P. 59(e) motion to alter, amend,
and reconsider the judgment. Specifically, the Irvins requested
that the district court reconsider and vacate the November 21,
4
2002, judgment to prevent manifest injustice. On February 4, 2003,
the district court denied the Rule 59(e) motion, stating that the
motion for summary judgment was filed while the Irvins were
represented by counsel, who neither requested a continuance nor
sought a rescheduling of deadlines. The Irvins filed a timely
notice of appeal on March 3, 2003.
JURISDICTION
This suit was originally filed in Louisiana state district
court on November 8, 1996. On March 5, 1999, two of the multiple
defendants, X.L. Insurance Company and Primex, Ltd., removed the
case to federal district court pursuant to 28 U.S.C. § 1446(d),
asserting jurisdiction under the Convention of the Recognition and
Enforcement of Foreign Arbitral Awards, 9 U.S.C. § 201 et seq. The
Irvins subsequently filed a motion to remand, which was denied by
the district court. The Defendants' motion for summary judgment
was granted, and the district court entered judgment on November
21, 2002. The Irvins filed a timely Rule 59(e) motion, which was
denied by the district court on February 4, 2003. The Irvins then
filed their notice of appeal on March 3, 2003.1 This Court has
jurisdiction to hear this appeal under 28 U.S.C. § 1291.
STANDARD OF REVIEW
1
In their notice of appeal, the Irvins do not raise any issue
as to the propriety of the initial removal of this case from state
court nor as to the propriety of the denial of their motion to
remand to state court; and we accordingly have not addressed these
issues on appeal.
5
I. The Irvins' Rule 59(e) Motion to Reconsider
The applicable standard of review of the denial of the Irvins'
motion to alter, amend, and reconsider is dependent on whether the
district court considered the materials attached to the Irvins'
motion, which were not previously provided to the court.2 Ford
Motor Credit Co. v. Bright, 34 F.3d 322, 324 (5th Cir. 1994). If
the materials were considered by the district court, and the
district court still grants summary judgment, the appropriate
appellate standard of review is de novo. Id. However, if the
district court refuses to consider the materials, the reviewing
court applies the abuse of discretion standard. Id. Under this
standard of review, the district court's decision and decision-
making process need only be reasonable. Id.
Based on a review of the district court's ruling on the motion
for reconsideration, it is unclear whether the additional materials
submitted by the Irvins were considered by the district court. The
district court does not expressly or impliedly refer to the
additional materials in its ruling. Therefore, in the absence of
any specific reference to these materials, we review the district
court's denial of the Irvins' Rule 59(e) motion for abuse of
discretion, i.e., as if the district court did not consider the
additional materials.
2
According to the Irvins' briefs, the additional materials
included reports showing that Mr. Irvin “suffered physical and
psychological injuries as a direct and proximate result of his
exposure to [sic] mustard gas release at the Georgia Gulf plant."
6
II. Defendants' Motion for Summary Judgment
This Court reviews grants of summary judgment de novo,
applying the same standard as the district court. Tango Transp. v.
Healthcare Fin. Servs. LLC, 322 F.3d 888, 890 (5th Cir. 2003).
Summary judgment is appropriate if no genuine issue of material
fact exists and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). The Court views the evidence
in a light most favorable to the non-movant. Coleman v. Houston
Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). The non-
movant must go beyond the pleadings and come forward with specific
facts indicating a genuine issue for trial to avoid summary
judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A
genuine issue of material fact exists when the evidence is such
that a reasonable jury could return a verdict for the non-movant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary
judgment is appropriate, however, if the non-movant "fails to make
a showing sufficient to establish the existence of an element
essential to that party's case." Celotex, 477 U.S. at 322-23.
DISCUSSION
I. Whether the district court abused its discretion in denying
the Irvins' motion to alter, amend, and reconsider its ruling
granting the Defendants' motion for summary judgment.
The Irvins suggest that the proper method for evaluating a
motion for reconsideration of a summary judgment where the movant
submits evidentiary materials in support of its motion that were
7
not considered by the court in its summary judgment ruling involves
the consideration of the factors enumerated in Lavespere v. Niagara
Machine & Toll Works, Inc., 910 F.2d 167 (5th Cir. 1990), overruled
on other grounds, Little v. Liquid Air Corp., 37 F.3d 1069 (5th
Cir. 1994). The Lavespere factors include: 1) the reasons for the
moving party's default; 2) the importance of the omitted evidence
to the moving party's case; 3) whether the evidence was available
to the non-movant before it responded to the summary judgment
motion; and 4) the likelihood that the non-moving party will suffer
unfair prejudice if the case is reopened. Id. at 174.
Taking these factors in turn, the Irvins argue that their
failure to provide the court with the requisite medical reports,
lists of treating physicians and all other experts, as well as the
Irvins' medical expert reports was a direct result of the lapse in
legal representation that occurred between March 15, 2002, and
August 22, 2002. The Irvins contend that the withdrawal by
Bensabat and Edwards on March 14, 2002, constituted "client
abandonment." In response, Defendants simply argue that any delays
in submitting additional materials to the court "begin and end with
the Irvins."
Second, the Irvins claim that the additional materials
included in their motion for reconsideration are critical to their
case. Specifically, they argue that the materials include medical
evidence linking their "ongoing physical and psychological
sufferings" to the exposure to mustard gas at the Georgia Gulf
8
plant. This evidence, the Irvins contend, would have established
their entitlement to damages and defeated the Defendants' motion
for summary judgment. The Defendants respond by arguing that the
omitted material is not important to the Irvins' case because it
does not change the fact that the Irvins failed to oppose the
motion for summary judgment and, in the alternative, inclusion of
the materials still does not establish the damages element of their
claim.
Third, the Irvins argue that although the information they
included in their motion for reconsideration was available to them
when the Defendants' motion for summary judgment was filed, the
Irvins were precluded from producing such evidence because the
court's March 1, 2002, scheduling order had established an
August 1, 2002, deadline for providing expert information.
Therefore, the Irvins contend, because the deadline had already
passed, they were unable to produce the relevant expert information
without violating the court’s scheduling order. The Defendants
simply state that the additional evidence is not "new" because it
was available to the Irvins at the time the Defendants filed their
motion for summary judgment.
Finally, the Irvins maintain that the Defendants will not be
prejudiced if the case is reopened. The Irvins argue that the
Defendants were provided medical reports in the Irvins’responses to
the Defendants' discovery requests. In addition, the Irvins
suggest that because there are at least 78 similar cases that have
9
been filed in relation to the same chemical release at issue here,
the Defendants are imparted with knowledge of evidence on damages,
causation, and liability, and therefore cannot claim prejudice if
the case is reopened. Defendants respond by arguing that reopening
the case would unfairly prejudice them as they have already
expended substantial judicial resources in defending the matter
pursuant to the court's March 1, 2002, scheduling order.
A Rule 59(e) motion "calls into question the correctness of a
judgment." In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir.
2002). This Court has held that such a motion is not the proper
vehicle for rehashing evidence, legal theories, or arguments that
could have been offered or raised before the entry of judgment.
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990).
Rather, Rule 59(e) "serve[s] the narrow purpose of allowing a party
to correct manifest errors of law or fact or to present newly
discovered evidence." Waltman v. Int'l Paper Co., 875 F.2d 468, 473
(5th Cir. 1989) (internal quotations omitted). Reconsideration of
a judgment after its entry is an extraordinary remedy that should
be used sparingly. Clancy v. Employers Health Ins. Co., 101 F.
Supp. 2d 463, 465 (E.D. La. 2000) (citing 11 CHARLES A. WRIGHT, ARTHUR
R. MILLER & MARY KAY KANE, Federal Practice & Procedure § 2810.1, at
124 (2d ed. 1995)).
In Lavespere, this Court recognized that while a district
court has considerable discretion in deciding whether to reopen a
case in response to a motion for reconsideration, such discretion
10
is not limitless. 910 F.2d at 174. This Court has identified two
important judicial imperatives relating to such a motion: 1) the
need to bring litigation to an end; and 2) the need to render just
decisions on the basis of all the facts. Id. (citations omitted).
The task for the district court is to strike the proper balance
between these competing interests. Id.
In this case, the district court stated that a motion for new
trial in a nonjury case or a petition for rehearing pursuant to a
Rule 59(e) motion should be based upon manifest error of law or
mistake of fact, and a judgment should not be set aside except for
substantial reasons. The district found that the Defendants'
motion for summary judgment was filed while the Irvins "were
represented by counsel, who did not request a continuance of the
motion or a rescheduling of the deadlines." The district court
also noted that it ruled on the unopposed motion more than sixty
days after it was filed, and then issued judgment nearly three
weeks later. In denying the Irvins' motion for reconsideration,
the district court stated:
[The Irvins] had ample time prior to the ruling to
express some form of opposition to the disposition of
their claims or to request additional time to respond.
[The Irvins] have been parties to this matter for nearly
six years; they have had more than enough opportunities
for a "day in court."
We have held that an unexcused failure to present evidence
available at the time of summary judgment provides a valid basis
for denying a subsequent motion for reconsideration. Russ v. Int'l
11
Paper Co., 943 F.2d 589, 593 (5th Cir. 1991). In this case, the
underlying facts were well within the Irvins' knowledge prior to
the district court's entry of judgment. However, the Irvins failed
to include these materials in any form of opposition or response to
the Defendants' motion for summary judgment. Although the Irvins
correctly point out that they were not represented by counsel for
approximately five months between March and August 2002, they were
represented by counsel, George Tucker, before the Defendants filed
their motion for summary judgment and after the district court
subsequently granted the motion.3
By denying the Irvins' motion for reconsideration, the
district court's decision is not manifestly unjust in law or fact,
nor does it ignore newly discovered evidence. The district court
reasonably determined that the facts in this case do not warrant
the extraordinary relief associated with the granting of a motion
for reconsideration. Therefore, the district court did not abuse
its discretion in denying the Irvins' Rule 59(e) motion.
II. Whether the Defendants' motion for summary judgment was based
upon factual misrepresentations.
The Irvins maintain that the judgment dismissing their case
was premised on representations of material facts that Defendants
knew to be false. Specifically, the Irvins point to two alleged
misrepresentations made by Defendants: 1) that the Irvins had not
3
At no point during the pendency of this case have the Irvins
alleged that any of their counsel were incompetent or incapable of
pursuing their case.
12
identified any expert witnesses on issues of liability, causation,
or damages to support their claims; and 2) that the Irvins had not
submitted any expert reports. The Irvins refute these statements,
arguing that even though the Irvins had not complied with the
deadlines established by the court's scheduling order, the
Defendants were still in possession of "a wealth of expert
information and reports" establishing causation and damages in the
form of responses to interrogatories and requests for production.
In addition, the Irvins contend that their interrogatory responses
identified experts they intended to use at trial.
Conversely, the Defendants argue that they have accurately
reported all the facts and circumstances supporting their motion
for summary judgment, including the Irvins' failure to identify any
expert witnesses or provide expert reports on the issues of
liability, causation, and damages.
Summary judgment is appropriate where the underlying facts are
undisputed, and the record reveals no evidence from which
reasonable persons might draw conflicting inferences about the
facts. Prinzi v. Keydril Co., 738 F.2d 707, 709 (5th Cir. 1984).
The district court based its ruling on the finding that the Irvins
had not produced any medical evidence, and therefore could not
establish that they suffered damages, an essential element of their
case. The district court cites Celotex, 477 U.S. at 322-23, for
the rule that a complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other
13
facts immaterial. In addition, Fed. R. Civ. P. 56 mandates that
summary judgment shall be entered against a non-movant who fails to
set forth specific facts showing that there is a genuine issue for
trial.
The Irvins did not deny or controvert the Defendants'
statement of undisputed facts, including the representations made
by the Defendants that the Irvins had not "identified any expert
witnesses on issues of liability, causation, or damages" or
"submitted any expert reports to support their claim." For that
reason, those facts as stated were deemed admitted. Uniform Local
Rule, 56.2. However, in the event the moving party relates facts
in its summary judgment motion that are untrue or inaccurate, and
the court subsequently relies on those misstatements in making its
decision, it would be improper to allow the moving party to benefit
in such a situation.
After reviewing the record, it seems clear that the Irvins
indeed failed to provide either of the two items as detailed by the
Defendants. In its ruling granting the Defendants summary
judgment, the district court appears to have inadvertently
broadened what the Defendants related in their summary judgment
motion. Specifically, the court states that the Irvins failed to
produce "any medical evidence." (Emphasis added). The Irvins did
in fact respond to written interrogatories as well as provide
14
opposing counsel copies of treating physician reports.4 However,
while these discovery responses may have constituted medical
evidence, the Defendants did not state that the Irvins failed to
provide evidence, but rather that the Irvins had not produced
expert witness lists or expert reports.5 The real problem facing
the Irvins is their basic failure to include this evidence in any
form of opposition to the Defendants’ summary judgment motion. As
such, the district court’s granting of the Defendants’ motion was
properly based on true and correct statements of fact.
III. Whether the district court ever reached the issue of the
Defendants' motion for involuntary dismissal, and if so,
whether the granting of the motion was an abuse of discretion.
The Irvins insist that the district court based its ruling on
the Irvins' failure to comply with the court's scheduling order.
They argue that although the district court characterized its
dismissal of the Irvins' case as a grant of summary judgment, the
court's rationale for its decision “is more properly viewed as an
involuntary sanction dismissal" under Fed. R. Civ. P. 16(f), 37(b),
and 41(b) for a party's failure to appear at a pretrial conference,
obey discovery orders, or prosecute an action. In response, the
Defendants argue that the district court never ruled on their
4
The interrogatory responses were not identified in the
record.
5
The treating physician reports submitted by the Irvins would
most certainly not satisfy the requirements established by Rule
56(c) and 56(e) for sworn, authenticated summary judgment evidence.
15
motion to dismiss, but if the court had, involuntary dismissal
would be appropriate.
Based on a review of the district court's ruling, it appears
clear from the reasons the district court articulates that its
decision was premised solely on the failure of the Irvins to
respond to or oppose the Defendants' motion for summary judgment.
The summary judgment ruling states that because the Irvins could
not "establish that they suffered damages, an essential element of
their case[,] Defendants are entitled to summary judgment as a
matter of law." In addition, the district court specifically
states that it found it "unnecessary . . . to consider the
alternative motion to dismiss." Therefore, the Irvins' third and
final issue on appeal is without merit.
CONCLUSION
Having carefully reviewed the record of this case, the
parties' respective briefing and arguments, and for the reasons set
forth above, we affirm the district court's granting of the
Defendants’ motion for summary judgment and its subsequent denial
of the Irvins’ Rule 59(e) motion to alter, amend, or reconsider.
AFFIRMED.
16
DENNIS, Circuit Judge, dissenting:
“Rule 59 gives the trial judge ample power to prevent what he
considers to be a miscarriage of justice.”6 When a party moves to
alter or amend a judgment under Rule 59(e), a district court is
obligated to balance carefully the need for finality with the need
to render a just decision on the basis of all the facts.7 That
obligation is increased “when the judgment, absent amendment,
creates or results in a manifest injustice.”8 In this case, the
need to render a just decision outweighed the need for finality,
but the court did not render a just decision.
Instead, the district court provided no indication that it
even considered the additional evidence that plaintiffs submitted
with their Rule 59 Motion.9 The district court, however, for the
reasons discussed below, was obligated to consider the additional
evidence. Accordingly, we should remand this case to the district
6
11 Wright, Miller, & Kane, Federal Practice and Procedure:
Civil 2d § 2803 (1995).
7
Edward H. Bohlin Co., Inc. v. Banning Co., Inc.6 F.3d 350,
355 (5th Cir. 1993).
8
12 James Wm. Moore et al., Moore’s Federal Practice §
59.30[5][a][v] (Matthew Bender 3d ed. 2003).
9
Even if, as a technical matter, the district court considered
the additional evidence, its opinion provides no analysis or
discussion of that evidence. Accordingly, I agree with the
majority that, for purposes of this appeal, we should review the
judgment as if the district court did not consider the evidence
attached to the Rule 59 motion.
17
court with orders to consider plaintiffs’ additional evidence and
reconsider the summary judgment in light of that evidence. Because
the majority opinion does not require such a reconsideration, I
respectfully dissent.
The Irvins submitted a Rule 59(e) motion to the district court
that contained evidence that had not been presented to the district
court previously. Specifically, it contained reports from Irvin’s
treating physicians that had been submitted in response to
defendants’ Interrogatories and Requests for Productions of
Documents as well as an affidavit from Irvin.
The majority reviews the district court decision “as if the
district court did not consider the additional materials,”
implicitly holding that the district court did not abuse its
discretion in failing to consider the materials.10 Considering the
unique and extraordinary history of this case, however, I believe
that the district court’s failure to consider this information was
10
The majority states that we should review the district
court’s Rule 59 decision de novo if the court considered the
additional evidence, but only for an abuse of discretion if it did
not consider the additional evidence. This approach is incorrect.
We review the district court’s decision to consider the new
evidence for an abuse of discretion. Fletcher v. Apfel, 210 F.3d
510, 512 (5th Cir. 2000). However, we review the actual challenge
to the summary judgment on its merits de novo because that
determination is an issue of law. Id.; see also Perez v. Aetna
Life Ins. Co., 150 F.3d 550 (6th Cir. 1999) (en banc) (stating that
“when the Rule 59(e) motion seeks review of a grant of summary
judgment, . . . we apply a de novo standard of review”); 12 James
Wm. Moore et al., Moore’s Federal Practice § 59.54[4][e] (Matthew
Bender 3d ed. 2003).(“[I]f the [Rule 59(e)] motion sought
reconsideration of a grant of summary judgment, the appellate court
will review the matter de novo.”).
18
a misuse of judicial discretion.
As this court has explained in Lavespere v. Niagara Machine
& Tool Works, Inc.,11 when a party “seeks to upset a summary
judgment on the basis of evidence [that the party] failed to
introduce on time,” the district court is obligated to weigh, inter
alia, several factors in deciding whether to admit the evidence:
(1) the reasons for the moving party’s default, (2) the importance
of the omitted evidence to the moving party’s case, (3) whether the
evidence was available to the movant before the non-movant filed
the summary judgment motion, and (4) the likelihood that the
nonmoving party will suffer unfair prejudice if the case is
reopened.12
These factors, it should be noted, are simply illustrative and
not exhaustive.13 In particular, the Lavespere court utilized this
framework, not to limit the scope of Rule 59(e), but to explain
that Rule 59(e) motions provide the district court with
“considerable discretion” and that they are “not controlled by the
same exacting substantive requirements as Rule 60(b) motions.”14
Because Rule 59(e) motions are subject to much more stringent time
requirements than Rule 60(b) motions, Rule 59(e) motions provide
11
910 F.2d 167 (5th Cir. 1990).
12
See id. at 174.
13
See id. (noting that the district court should consider these
four factors “among other things”).
14
See id.
19
relief for the movant on grounds at least as broad as Rule 60
motions.15 Rule 59(e), therefore, provides district courts with the
power to consider equitable factors and provide relief for “any .
. . reason justifying relief from the operation of the judgment.”16
The equitable considerations under Rule 59(e) weigh in
plaintiffs’ favor when one considers the unique facts of this case.
Specifically, (1) the Irvin’s “default” resulted, not through any
fault of their own but because of egregious lawyer misconduct
causing them virtually total deprivation of representation and the
benefits of the adversary system of justice; (2) the omitted
evidence was essential to the Irvin’s case; (3) the evidence was
made available to defendants-movants before they filed their motion
for summary judgment; and (4) defendants in this case would not
have been prejudiced by an introduction of the evidence because
plaintiffs had already provided them with the evidence.
First, the plaintiffs did not present the evidence to the
15
See id.; see also Smith v. Morris & Manning, 657 F.Supp 180,
181 (S.D.N.Y 1987) (When filing a motion under Rule 59(e), “[a
party] need not meet the somewhat stringent requirements of Rule
60, which is aimed at protecting the finality of judgments from
belated attack.”).
16
See Fed. R. Civ. P. 60(b)(6); see also Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 863-64 (1987) (noting
that Rule 60(b)(6) provides district courts with “authority
adequate to enable them to vacate judgments whenever such action is
appropriate to accomplish justice,” but that such power should only
be used in “extraordinary circumstances.”) (internal quotations
omitted).
20
district court initially, through no fault of their own, but
because they were subjected to attorney conduct and inaction so
egregious that it “amounted to nothing short of leaving [them]
unrepresented.”17 While it is true that a district court has the
discretion to refuse to use Rule 59 to “rescue” a plaintiff from
simple negligence, or a “blunder” by his attorney,18 the facts of
this case go far beyond a simple blunder by a plaintiff’s attorney.
The conduct of the Irvins’ attorneys in this case constitutes
“neglect so gross that it is inexcusable.”19
The district court imposed five discovery deadlines between
March 15th, 2002 and August 1st, 2002 on which plaintiffs were
obligated to act. They were required to produce current medical
reports and releases by March 15th. They were required to obtain
all existing discovery from other counsel of record by April 30th.
They were required to propound additional non-repetitive discovery
by May 31st. They were required to file a list of treating
physicians and all other experts with the court by July 1st. They
were required to submit their medical expert reports by August 1st.
The plaintiffs were literally without counsel during the entire
period spanning these deadlines. Indeed, the counsel that had been
representing them previous to those deadlines withdrew–with the
17
Boughner v. Secretary of HEW, 572 F.2d 976, 977 (3rd Cir.
1978).
18
See Lavespere, 910 F.2d at 173.
19
Boughner, 572 F.2d at 978.
21
court’s permission–the day before the first deadline. In short,
the Irvins were completely without counsel–a situation permitted by
the district court–during the period of time that assistance of
counsel was most crucial to the Irvins’ case.20
Both the district court and the majority opinion minimize the
impact of the Irvins’ lack of counsel during this critical period.
They note that George Tucker enrolled as the Irvins’ counsel on
August 22nd and represented them when defendants filed their
summary judgment motion on August 30th. This “representation,”
however, was virtually non-existent. From the record, it appears
that all Tucker did on behalf of the Irvins was attend one status
conference. He filed no papers with the court in response to the
summary judgment motion and moved to withdraw from representation
of plaintiffs five days after the court granted summary judgment.
At least one other circuit recognizes that an attorney’s
inaction over a sustained period can be so detrimental to a client
as to constitute “neglect so gross that it is inexcusable.”21
Specifically, the Third Circuit has held that it is an abuse of
discretion for a district court to refuse to grant a party relief
under Rule 60(b) when that party’s attorney engages in “egregious
conduct [that] amount[s] to nothing short of leaving his clients
20
This consideration is even more important in a complex toxic
tort case such as this one in which the court cannot expect a lay
person to understand the issues of medical causation and the
necessity of expert testimony to prove the case.
21
Boughner, 572 F.2d at 978.
22
22
unrepresented.”
The motion in front of us today presents such egregious
conduct. Plaintiffs were literally without enrolled counsel during
the most critical stages of the proceedings in a factually complex
case. Although it is true that at an earlier stage of the case the
plaintiffs were represented by a lawyer who collected the evidence
in question and submitted it to the defendants, the plaintiffs were
completely without counsel during the critical period when that
evidence could have been presented to the court. Upon obtaining
counsel again, plaintiffs immediately filed the present Rule 59
Motion and submitted the required evidence.
Second, the omitted evidence was critical to the Irvin’s case
because the evidence, had the court accepted it, arguably creates
a dispute of material fact that would have allowed the Irvins to
defeat summary judgment. Therefore, the second Lavespere factor
also weighs in the Irvins’ favor.23
22
See id. at 977. As noted above, Boughner was decided under
Rule 60, not Rule 59. To the extent this distinction makes a
difference, it works in favor of the plaintiffs here because, as
explained above, a party should obtain district court relief more
easily under Rule 59 than Rule 60. See Lavespere, 910 F.2d at 173-
74 (noting that Rule 59 “is not controlled by the same exacting
substantive requirements” as Rule 60); see also, supra, notes 8-11
and accompanying text.
23
The majority implies that summary judgment may be appropriate
even if the district court were to consider the additional
evidence. Specifically, the majority asserts in footnote 5 that
“[t]he treating physician reports submitted by the Irvins would
most certainly not satisfy the requirements established by Rule
56(c) and 56(e) for sworn, authenticated summary judgment
evidence.” This issue is not as clear-cut as the majority
23
Finally, the defendants would not be prejudiced by the
admission of this evidence because the plaintiffs provided
defendants with the relevant information in September of 2000,
almost two years before defendants filed their summary judgment
motion.24 Accordingly, the district court would not have harmed the
defendants by accepting and considering the evidence submitted with
the Rule 59 motion.
In short, proper application of the factors that this court
has instructed district courts to use in deciding whether to
consider additional evidence submitted with a Rule 59 motion should
indicates. Though sworn affidavits are the typical evidence used
to counter motions for summary judgment, “Rule 56 does not require
that a moving party support its motion with affidavits.” Salas v.
Carpenter, 980 F.2d 299, 304 (5th Cir 1992) (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986)). Instead, Rule 56(c)
specifically states that the court should consider “the pleadings,
depositions, answers to interrogatories, and admissions on file” in
addition to affidavits when ruling on a motion for summary
judgment. The record in this case establishes that these treating
physician reports were included in responses to interrogatories by
the defendants. It is not clear how the totality of the evidence
will bear on the motion for summary judgment. Such a decision
should be for the district court in the first instance after it
properly considers the evidence submitted with the Rule 59 motion.
See, e.g., Boughner, 572 F.2d at 979 (remanding case to district
court for reconsideration after reversing district court denial of
appellant’s Rule 60 motion).
24
It is also worth noting in this context that the district
court has presided over many other cases involving this same
chemical spill. In exercising its discretion in deciding whether
to consider plaintiffs’ additional evidence, the district court
should have also considered the likelihood, based on its experience
in these other cases, that plaintiff’s additional evidence was
relevant to the merits of the summary judgment motion.
24
have led the district court to consider the evidence.25
There is, of course, a need for finality of judgments.
However, in an extraordinary case such as this–where plaintiffs had
evidence arguably sufficient to survive summary judgment, submitted
that evidence to defendants, and failed to provide the evidence to
the court in a timely manner due only to a complete abandonment by
the legal system–the district court misused its discretion in
denying the Rule 59(e) motion without considering the relevant
evidence submitted with it.
Accordingly, I would vacate the summary judgment and remand
this case to the district court with instructions to consider the
evidence that plaintiffs submitted with their Rule 59 motion before
acting on the motion.
Respectfully, I dissent.
25
To the extent that judicial economy is also a factor in a
Rule 59 analysis, it is also worth noting that the district court
could have accepted the evidence with almost no additional burden.
It simply had to review what the plaintiffs submitted with the Rule
59 motion.
25