Varrecchio v. Moberly

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

RACHEL VARRECCHIO CIVIL ACTION

VERSUS 17-670-SDD-EWD

MICHELLE MOBERLY, ET AL

RULING

This matter is before the Court on the Motion for New Trial1 by Plaintiff Rachel

Varrecchio (“Varrecchio”). Defendant Michelle Moberly (“Moberly”) has filed a

Memorandum in Opposition2 to this motion. For the following reasons, Varrecchio’s

motion is DENIED.

I. FACTS AND PROCEDURAL HISTORY3

On August 22, 2016, Varrecchio was involved in a motor vehicle accident with

Defendant Moberly in Orlando, FL.4 Varrecchio contends that she is a resident of

Louisiana and that Moberly is a resident of Ohio.5 Varrecchio filed suit originally in

the 23rd Judicial District Court, naming as defendants Moberly, Allstate Insurance

Company, and State Farm Mutual Automobile Insurance Company.6 State Farm

removed the matter on September 22, 2017.7

1 Rec. Doc. 51.

2 Rec. Doc. 53.

3 Rec. Doc. 42; Fifth Supplemental and Amending Complaint.

4 Rec. Doc. 25 p. 5.

5 Rec. Doc. 25 p. 2-3; Rec. Doc. 51-1 p. 16-17.

6 Rec. Doc. 1.

7 Id.

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On June 14, 2018, Moberly filed a Rule 12(B)(2) Motion to Dismiss for Lack of

Personal Jurisdiction.8 On July 2, 2018, Varrecchio filed a Memorandum in

Opposition to that motion.9 On February 21, 2019, this Court granted Moberly’s

Motion to Dismiss, finding that Moberly lacked sufficient contacts with Louisiana so

as to provide the Court with personal jurisdiction over her.10

Varrecchio now moves for a new trial under Rule 59, or in the alternative, to

amend the judgment and permit the matter to continue against Moberly’s insurers.

As a final alternative, Moberly asks the Court to transfer the matter to a federal district

court of proper venue and competent jurisdiction.

II. APPLICABLE LAW

“In a non-jury case, a district court may grant a new trial when the Court

believes that it has committed a ‘manifest error of law or fact.’”11 Trial courts have the

power to grant a new trial when the verdict is “against the weight of the evidence,”12

or when the trial was unfair.13 Courts do not grant new trials unless it is reasonably

clear that prejudicial error has crept into the record or that substantial justice has not

been done, and the burden of showing harmful error rests with the party seeking new

trial.14

8 Rec. Doc. 47.

9 Rec. Doc. 49.

10 Rec. Doc. 50.

11 Barthelemy v. Phillips Petroleum Company, No. 96-2226, 1999 WL 169468 (E.D. La. Mar. 24, 1999)

(quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)(“Motions for a new trial ... must clearly

establish either a manifest error of law or fact.”)).

12 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433 (1996).

13 Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir. 1989).

14 National Union Fire Ins. of Pittsburgh, Pa. v. Puget Plastics Corp., 735 F.Supp.2d 650 (S.D. Tex. 2010).

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In the alternative to granting a new trial—and for the first time—Varrecchio

moves the Court to transfer the matter to a Court of competent jurisdiction and proper

venue. Unlike the broad discretion Congress has given to district courts when

considering a motion for new trial, a motion to alter or amend serves “the narrow

purpose of allowing a party to correct manifest errors of law or fact or to present newly

discovered evidence and is not the proper vehicle for rehashing evidence, legal

theories, or arguments that could have been offered or raised before the entry of the

judgment.”15 There are three grounds for altering or amending a judgment under Rule

59(e): “(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.”16

III. ANALYSIS

The Court previously ruled that Moberly had “no contacts with Louisiana other

than being involved in an accident with a Louisiana resident which occurred in

Florida,”17 and the Court found that Moberly had no business or property in

Louisiana.18 Therefore, the Court held that Moberly lacked sufficient contacts with

Louisiana so as to provide the Court with general personal jurisdiction over her.

Further, this Court also found that Moberly had not “purposefully availed herself of

the laws and privileges of Louisiana,” and “[n]one of the acts giving rise to the

accident occurred in Louisiana.”19 It is axiomatic that “jurisdiction will not be exercised

15 Knight v. Kellogg Brown & Root Inc., 333 Fed. Appx. 1, 8 (5th Cir. 2009).

16 Williamson Pounders Architects, PC, 681 F.Supp.2d 766, 767 (N.D. Miss. 2008).

17 Rec. Doc. 50 p. 8.

18 Id.

19 Id.

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because of the ‘mere[ly] fortuit[ous]’ fact that Plaintiff resides in the forum.”20 For

those reasons, the Court held that it lacked specific personal jurisdiction as well.21

Consequently, the Court granted Moberly’s Motion to Dismiss for Lack of Personal

Jurisdiction.22

The standard for granting a motion for new trial in a civil matter is a high bar,

and Varrecchio fails to meet the burden of proof required by Rule 59. Varrecchio

failed to demonstrate a new law or a change in existing law, and she likewise failed

to present newly discovered evidence in the matter, leaving only the possibility of

legal error or injustice. The Court finds no error of law or fact demonstrated by

Varrecchio in her Motion. Rather, Plaintiff’s argument that “jurisdiction over the

person . . . is allowed wherever there exists the Proper Venue for the controversy to

be litigated” conflates venue and personal jurisdiction, erroneously contending that

the two are virtually the same.23 The question of venue is separate from the question

of personal jurisdiction. Venue does not provide a court with personal jurisdiction, and

having personal jurisdiction over a defendant does not necessarily mean that venue

is proper for the matter. Put simply, venue is not determinative of personal jurisdiction.

The question before the Court in the Motion to Dismiss was not a question of venue

but of personal jurisdiction, and it required analysis under Rule 12(b)(2), not Rule

12(b)(3).

20 Rec. Doc. 50 p. 8 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).

21 Id.

22 Id.

23 Rec. Doc. 51-1 p. 2.

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Alternatively, Varrecchio requests that the Court maintain this action against

Moberly’s insurers, namely, Allstate and State Farm.24 Varrecchio argues that LA.

REV. STAT. 22:1269 (incorrectly cited by the plaintiff as LA. REV. STAT. 22:655) permits

pursuit of claims directly against insurers alone. Varrecchio is not wrong; that

statute—referred to as the Louisiana Direct Action Statute—does indeed permit direct

action against insurers alone, but only in a limited set of circumstances:

B. (1) The injured person . . . shall have a right of direct action

against the insurer . . . and, such action may be brought

against the insurer alone . . however, such action may be

brought against the insurer alone only when at least one of

the following applies:

a. The insured has been adjudged bankrupt by a

court of competent jurisdiction or when

proceedings to adjudge an insured bankrupt

have been commenced before a court of

competent jurisdiction.

b. The insured is insolvent.

c. Service of citation or other process cannot be

made on the insured.

d. When the cause of action is for damages as a

result of an offense or quasi-offense between

children and their parents or between married

persons.

e. When the insurer is an uninsured motorist

carrier.

f. The insured is deceased.25

Varrecchio has offered no evidence that satisfies the statute. Accordingly,

Varrecchio’s alternative request to proceed against Moberly’s insurers in this Court

is DENIED.

24 Rec. Doc. 51 p. 2.

25 LA. REV. STAT. 22:1269(B)(1).

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Finally, Varrecchio moves to transfer this matter to a court of competent

jurisdiction and proper venue.26 This relief was not requested previously.27 A Rule 59

motion is improper if it advances a position that a party failed to advance prior to the

judgment that the party now seeks to amend.28 Moreover, Varrecchio fails to show

sufficient grounds for the requested relief. Amendment of a judgment is an

extraordinary remedy that should be used sparingly, such as when a court

fundamentally misunderstood the facts or the controlling law.29 There is no manifest

injustice suffered here as a result of this Court’s granting of Moberly’s Motion to

Dismiss; Moberly even concedes that a new lawsuit may be filed in Florida where the

accident occurred.30 The Court therefore finds that there are not sufficient grounds

for amendment of its prior judgment, and this alternative request for relief is DENIED.

IV. CONCLUSION

For the reasons set forth above, Plaintiff’s Motion for New Trial31 and all alternative

requests made therein are DENIED.

IT IS SO ORDERED.

Baton Rouge, Louisiana on this 2_1_s_t_ day of November, 2019.

S

____________________________________

SHELLY D. DICK, CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

26 Rec. Doc. 51 p. 2.

27 See Rec. Doc. 49.

28 See Naquin v. Elevating Boats, L.L.C., 817 F.3d 235, 240 n.4 (5th Cir. 2016); Perez v. Lorraine Enters.,

Inc., 769 F.3d 23, 28 (1st Cir. 2014).

29 See In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002); Sentry Select Ins. Co. v. Home State

County Mut. Ins. Co., 582 Fed. Appx. 282 (5th Cir. 2014); Williams v. Thaler, 602 F.3d 291, 303-304 (5th

Cir. 2010).

30 Rec. Doc. 51-1 p. 17.

31 Rec. Doc. 51.

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