Nelson v. Constant

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TAMARA G. NELSON, ET AL., * CIVIL ACTION

Plaintiffs * NO. 17-14581

*

VERSUS * DIVISION: 1

*

BELINDA C. CONSTANT, ET AL. * MAGISTRATE JUDGE

Defendants * JANIS VAN MEERVELD

*

ORDER AND REASONS

Before the court is the plaintiffs’ Motion for Reconsideration under Rule 59. (Rec. Doc.

171). For the following reasons, the Motion is DENIED.

Background

Plaintiffs filed this lawsuit to challenge certain procedures at the Mayor’s Court of the City

of Gretna under the Due Process and Equal Protection Clauses of the United States Constitution.

The Equal Protection claims, described by plaintiffs as Count II, were settled. The Due Process

claims, described as Count I, alleged a financial conflict of interest in the Mayor’s Court. Plaintiffs

alleged that the Mayor’s Court, which is appointed by the City Council and serves at the pleasure

of the Mayor, is incentivized to maximize arrests and multiply prosecutions to generate fines and

fees that fund the City of Gretna. Plaintiffs sought to certify a class of persons cited to appear

before the Mayor’s Court who are awaiting adjudication of their criminal or traffic cases.

Defendants filed a Motion for Summary Judgment and plaintiffs filed a Motion for Partial

Summary Judgment on Count I. Following extensive oral argument on January 24, 2020, the

Court issued an Order and Reasons on February 20, 2020, denying the plaintiffs’ Motion and

granting the defendants’ Motion. The court carefully considered the substantiality of the fees

generated by the Mayor’s Court, the overlap in the executive and judicial functions, the alleged

temptation faced by the Magistrates, and the alleged temptation faced by the City Prosecutor in

concluding that, on the undisputed facts, the Mayor’s Court could not present an institutional

financial conflict of interest.

Following court approval of the settlement of the Count II Equal Protection claims, the

court entered judgment on all claims on January 15, 2021. On February 12, 2021, plaintiffs filed

the present Motion for Reconsideration under Rule 59.

Plaintiffs argue that reconsideration is appropriate because the court erroneously

considered the temptation that an average attorney would face and should have considered the

average person. They also argue that reconsideration is appropriate because the court should have

considered revenue from the Deferred Prosecution Program in analyzing the potential conflict of

interest.

Defendants oppose. They argue that plaintiffs have not met the standard for reconsideration

because they merely raise arguments and legal theories that the court has already considered and

ruled upon.

Plaintiffs’ Motion was taken under submission on March 31, 2021. No reply memorandum

was filed.

Law and Analysis

1. Standard for Motion for Reconsideration

“The Federal Rules of Civil Procedure do not provide for a ‘Motion for Reconsideration’

but such motions may properly be considered either a Rule 59(e) motion to alter or amend

judgment or a Rule 60(b) motion for relief from judgment.” Hamilton Plaintiffs v. Williams

Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir. 1998). If filed within the time period required by Rule

59(e), a motion for reconsideration is considered under that rule. See id.; Shimon v. Sewage &

Water Bd. of New Orleans, No. CIV.A. 05-1392, 2007 WL 101038, at *1 (E.D. La. Jan. 9, 2007).

A Rule 59(e) “motion to alter or amend judgment must be filed no later than 28 days after the entry

of the judgment.” Fed. R. Civ. Proc. 59(e). Plaintiffs here have filed their motion for

reconsideration within 28 days of the judgment and, accordingly, Rule 59(e) applies.1

“A motion to alter or amend judgment [under Rule 59(e)] must ‘clearly establish either a

manifest error of law or fact or must present newly discovered evidence.’” Ross v. Marshall, 426

F.3d 745, 763 (5th Cir. 2005) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.

1990)). It “cannot be used to raise arguments which could, and should, have been made before the

judgment issued.’” Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir.

2010) (quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003)). Reconsidering a

judgment is extraordinary, and the court “must balance between two competing interests: the desire

to achieve and maintain a final judgment and the desire to reach a just decision based upon the

evidence.” Shimon v. Sewage & Water Bd. of New Orleans, No. CIV.A. 05-1392, 2007 WL

101038, at *2 (E.D. La. Jan. 9, 2007); see Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th

Cir. 2004) (“Reconsideration of a judgment after its entry is an extraordinary remedy that should

be used sparingly.).

1 The court notes that it issued the Order and Reasons challenged by the plaintiffs almost one year earlier, on February

20, 2020. (Rec. Doc. 131). That Order and Reasons did not dispose of all issues in the case because the parties still

had to seek court approval of their settlement of the remaining claims. After the court’s approval, final judgment was

entered on all claims on January 15, 2021. Although plaintiffs might have sought reconsideration of the February 20,

2020, ruling at an earlier time, they chose not to do so. See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d

167, 185 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994)

(“[B]ecause the denial of a motion for summary judgment is an interlocutory order, the trial court is free to reconsider

and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening

change in or clarification of the substantive law.”); see also Fed. R. Civ. P. 54(b); Vladmir Ltd. v. Pac. Parts Supply

Co., No. CIV.A.SA-08-CV-819XR, 2009 WL 4110288, at *2 (W.D. Tex. Nov. 20, 2009).

When deciding whether to consider late-filed evidence, “the court should consider, among

other things, (1) the reasons for the plaintiffs’ default, (2) the importance of the evidence to the

plaintiffs’ case, (3) whether the evidence was available to plaintiffs before they responded to the

summary judgment motion, and (4) the likelihood that the defendants will suffer unfair prejudice

if the case is reopened.” Ford v. Elsbury, 32 F.3d 931, 937–38 (5th Cir. 1994). But the court notes

that the mover is not required to “first show that her default was the result of mistake, inadvertence,

surprise, or excusable neglect or that the evidence is such as to show that the judgment was

manifestly wrong.” Id. at 937 (5th Cir. 1994) (quoting Lavespere, 910 F.2d at 174).

2. Analysis

a. Average Person Standard

Plaintiffs seize on this court’s statement that “[t]here is nothing to suggest that the average

attorney with the experience of Olden or Toups would be tempted to skew the burden of proof

because of the risk of losing a part-time job that paid $87.55 per hour.” (Rec. Doc. 131, at 25).

They argue that the court should have considered whether the average person would have been

tempted by that risk and they cite the estimated median salary in Gretna in 2017 was $41,2602 to

argue that the average person in Gretna would consider pay of $87.55 per hour to be lucrative.

Reconsideration is not appropriate here. This court did not adopt a new standard. Instead,

the court explicitly recognized the applicability of the average man as judge standard.3 Id. at 10-

2 Defendants argue that the Court should not consider the Exhibits submitted by the plaintiffs, which contain

information from the U.S. Census Bureau website regarding median income, mean income ($62,290), and the

percentage of people whose income fell below the poverty level (20%) in Gretna. The plaintiffs do not argue that the

matter should be reopened to allow consideration of “newly discovered evidence,” nor do they explain whether the

information was available earlier or why they did not submit it previously. The court presumes this information was,

in fact, available earlier because it was obtained from the U.S. Census Bureau website for a time period over two years

prior to the hearing on their Motion for Summary Judgment. Regardless, even if this evidence had been considered, it

does not change the Court’s assessment of the possible temptation experienced by the average person in Toups’ or

Olden’s position.

3 Courts distinguish the “average man as judge standard” from a subjective standard that would consider whether the

individual judge had actually been biased. Brown v. Vance, 637 F.2d 272, 284 (5th Cir. 1981) (“We need find no

13. The court then applied the average man as judge standard. As to the salaries, the court

concluded that “plaintiffs fail to show that the Magistrates’ salaries would be considered lucrative

by the average person in the position of Toups or Olden.” Id. at 25 (emphasis added). Taken in

context, the “average attorney” statement quoted by the plaintiffs refers merely to the fact that the

average person serving as a magistrate would be able to earn a similar if not higher hourly rate

doing other work as an attorney.4 To read that sentence out of context as applying a new standard

is disingenuous. Importantly, and as pointed out by the defendants, the court’s determination of

the possible temptation faced by Olden and Toups did not turn on their salary. The court considered

the totality of the circumstances. Id. at 22-23; see Cain v. White, 937 F.3d 446, 454 (5th Cir. 2019)

(footnote omitted) (emphasizing that “it is the totality of this situation, not any individual piece,

that leads” to the court’s conclusion regarding the temptation). The court considered the salary the

Magistrates would forego if they lost their position as magistrates, that the Magistrates’ salary was

not tied to volume of convictions, that the Magistrates have no administrative or executive

authority over the General Fund or Gretna itself, that the Mayor does not control the Magistrates’

salary, that the Magistrates had served under multiple Mayors, and that the Magistrates’ salaries

instance of actual judicial bias to hold the fee system constitutionally infirm.”); see Caperton v. A.T. Massey Coal

Co., 556 U.S. 868, 881 (2009) (“The Court asks not whether the judge is actually, subjectively biased, but whether

the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”);

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986) (“[W]e are not required to decide whether in fact [the judge]

was influenced . . . .”); Tumey v. State of Ohio, 273 U.S. 510, 532 (1927) (“[T]he requirement of due process of law

in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could

carry it on without danger of injustice.”). Plaintiffs cite no case law to support their argument that the “average man

as judge” standard requires a court to compare the financial benefit received by the adjudicator to the average income

in the region.

4 That section reads in full:

But plaintiffs fail to show that the Magistrates’ salaries would be considered lucrative by the average

person in the position of Toups or Olden. They both maintain their own private law practices.

Attorneys’ fee awards in this district regularly find hourly rates of $240 or more to be reasonable.

There is nothing to suggest that the average attorney with the experience of Olden or Toups would

be tempted to skew the burden of proof because of the risk of losing a part-time job that paid $87.55

per hour.

(Rec. Doc. 131, at 25).

had not changed even in the face of decreasing revenues. The court concluded that “the court

cannot find that the Magistrates face a possible temptation to forget the burden of proof and convict

the defendants before them, failing to hold the balance nice, clear and true between the state and

the accused.” Id. at 26.

Plaintiffs simply disagree with the court’s conclusion. They have failed to show a manifest

error of law.

b. Deferred Prosecution Revenues

Plaintiffs argue that considering the funds generated by the Mayor’s Court “combined with

the Mayor’s and Magistrates’ shared temptation,” the court should have found a constitutional

violation. They argue that revenue from the Deferred Prosecution Program should have been

considered when measuring the potential conflict of interest in the Mayor’s Court. They recognize

the court’s finding that the City Prosecutor was not subject to an unconstitutional conflict of

interest, but they argue that the court failed to consider that the conflict arises from both the

“prosecutor and the judges being at-will employees of the executive, for whom they generate

revenue.” They argue that the Magistrates face a possible temptation to maintain a high conviction

rate and also to incentivize participation in the deferred prosecution program, which would save

the city the cost of providing additional legal process. They argue that the constitutional violation

they complain of is inherent in the acts of the Mayor, the Magistrates, the City Prosecutor, and the

police. They reurge their argument that their case involves a government-wide conflict akin to

Tumey v. Ohio, 273 U.S. 510 (1927) and Ward v. Village of Monroeville, 409 U.S. 57 (1972).

They object to the court’s conclusion that the City Prosecutor, who lacks control over the funds

generated by the deferred prosecution program, mirrors the case in Harjo v. City of Albuquerque,

326 F. Supp. 3d 1145 (D.N.M. 2018). They argue that the prosecutor faces a temptation to remain

in the executive’s good graces because he receives a salary of $73,447 plus healthcare, which they

submit the average person would find lucrative. They distinguish Harjo, arguing that unlike in

Harjo, here the City Prosecutor is an at-will employee of the Mayor and the funds generated by

the forfeiture program are under the Mayor’s control. Plaintiffs also argue that they have presented

evidence that the Gretna Police Department has a custom of charging all crimes as municipal

ordinance violations whenever a state misdemeanor analog exists and that it has a quota system in

place. They add that the Chief of Police directly ordered an increase in citations, threatening that

a failure to increase court revenue would endanger the officer’s retirement. They concede that the

Chief of Police is separately elected and not under the Mayor’s control, but they submit that the

Chief of Police’s department depends on the General Fund to operate. Plaintiffs argue that for

these reasons, the revenue of the Deferred Prosecution Program should have been included in the

Court’s assessment of the potential conflict of interest.

Defendants oppose. They submit that the Court already considered the argument plaintiffs

now raise and rejected it. Defendants argue that plaintiffs’ rehashed argument does not

demonstrate that the Court’s analysis was manifestly erroneous warranting reconsideration under

Rule 59.

As the defendants point out, the Court has already considered plaintiffs’ argument that

revenue from the Deferred Prosecution Program should be considered. The court declined to do

so, concluding that such revenues could not “properly be attributed to the structural temptation

potentially felt by the Magistrates” because program participants are “not found guilty by the

Magistrates, and Magistrates are not tasked with applying the appropriate burden of proof to the

evidence before them.” (Rec. Doc. 131, at 23-24). In any event, the court concluded even

[i]f such revenues were included, however, the range of revenues as a portion of

the General Fund ranges from 9.6% to 13.6%. Even these are hardly “staggering,”

though closer to the range considered sufficient in Cain and Caliste. Under either

calculation, the relative volume of funds generated by the Mayor’s Court might

create an impermissible conflict of interest if, like in Rose and DePiero, the Mayor

herself served as the adjudicator. 180 F.3d at 776. But that is not the case here.

Id. (footnote omitted).

Like the defendants, the court is unable to identify any new argument, evidence, or

consideration from the string of arguments and evidence plaintiffs have, somewhat haphazardly,

stitched together in support of the present motion. A motion for reconsideration is nota vehicle

for restating arguments that failed to convince the Court a year ago or to raise new arguments that

could have been raised originally. Plaintiffs have failed to show a manifest error of law or fact

justifying reconsideration of this court’s prior ruling.

Conclusion

Plaintiffs have failed to clearly establish either a manifest error of law or fact. Nor have

they presented newly discovered evidence justifying reconsideration. Accordingly , the Motion for

Reconsideration is DENIED.

New Orleans, Louisiana, this 13th day of April, 2021.

Q\as Vanw Moe, vol

Janis van Meerveld

United States Magistrate Judge