Aybar v. Crispin-Reyes

United States Court of Appeals

For the First Circuit

No. 96-1676

CARLOS YAMIL AYBAR, MARIA I. MORALES-LABOY,

Plaintiffs, Appellants,

v.

DIGNA CRISPIN-REYES, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Stahl, Circuit Judge,

Aldrich and Campbell, Senior Circuit Judges.

Eduardo M. Joglar with whom Esther Crispin was on brief for

appellants.

John F. Navares with whom Lizzi M. Portela and Smith & Nevares

were on brief for appellees.

June 26, 1997

STAHL, Circuit Judge. This appeal concerns the STAHL, Circuit Judge.

district court's dismissal of and subsequent refusal to

reconsider plaintiffs-appellants' 42 U.S.C. 1983 claims

against two law enforcement officials of the Commonwealth of

Puerto Rico.

Background Background

On March 25, 1993, appellees Sonia Otero-Martinez,

Assistant District Attorney of the Commonwealth of Puerto

Rico, and Diana Crispin-Reyes, a Commonwealth of Puerto Rico

police officer, filed criminal charges against appellant

Carlos Yamil Aybar for the commission of sexual misconduct,

based on the allegations of a witness named Emily Rivera. On

April 29, 1993, officer Crispin-Reyes visited Aybar's place

of employment, Wometco of Puerto Rico, and informed Aybar's

superiors of the charges against him. Wometco subsequently

terminated Aybar's employment. According to Aybar, his

termination resulted from Crispin-Reyes' visit to Wometco.

On July 13, 1993, appellant Maria I. Morales-Laboy, Aybar's

then girlfriend and future wife who also was a Wometco

employee, resigned from her position at Wometco citing as the

cause of her resignation harassment from co-workers

concerning the charges against Aybar. On July 1, 1994, the

district court of Puerto Rico dismissed all charges against

Aybar.

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On July 1, 1994, Aybar and Morales-Laboy filed a

complaint in federal district court naming numerous

defendants and deriving from the prosecution of Aybar and his

subsequent termination of employment. The complaint charged

Otero-Martinez and Crispin-Reyes with violations of the

Federal Civil Rights Act, 42 U.S.C. 1983, allegedly for

malicious prosecution of Aybar, violation of Aybar's right

not to be subject to defamation, and infringement of his

right to secure employment. Morales-Laboy alleged a

continuous tort and, with Aybar, injury to their conjugal

relationship, both stemming from the alleged violations of

Aybar's civil rights. Aybar and Morales-Laboy also named the

Commonwealth of Puerto Rico, Pedro Rossello (the Governor of

Puerto Rico), Pedro Pierluisi (the Attorney General of Puerto

Rico), and Pedro Toledo (the Puerto Rico Superintendent of

Police) as defendants both in their official and in their

personal capacities. On August 9, 1994, Aybar and Morales-

Laboy amended the complaint to increase the damages sought.

On September 13, 1994, the Commonwealth and

Pierluisi (in his official capacity) filed a motion to

dismiss the claims against them based on the immunity

afforded by the Eleventh Amendment to the Constitution. On

November 30, 1994, Rossello and Pierluisi, in his personal

capacity, joined the motion to dismiss and filed a

supplemental memorandum in support thereof. On February 7,

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1995, Toledo also joined the motion to dismiss. Neither

Otero-Martinez nor Crispin-Reyes joined in the motion. Aybar

and Morales-Laboy failed to respond to the motion.

On March 15, 1995, the district court for the

district of Puerto Rico (Fuste, J.) entered a final judgment

pursuant to Fed. R. Civ. P. 12(b)(6) dismissing appellants'

complaint against all defendants, including Otero-Martinez

and Crispin-Reyes. The district court determined that

appellants' 1983 claim against all appellees for malicious

prosecution did not state a claim for either a procedural or

a substantive due process violation. The district court also

found that although appellants' actions may have violated

Aybar's Fourth Amendment rights, the applicable one year

statute of limitations barred this claim. With respect to

appellants' claimed violation of Aybar's right to secure

employment, Judge Fuste ruled that Aybar, as an employee of a

private corporation, did not possess a property interest

protected by the Fourteenth Amendment. The district court

also concluded that defamation alone "cannot be the basis for

a claim under 42 U.S.C. 1983." The court further indicated

that the Eleventh Amendment barred appellants' suit against

Puerto Rico, Rossello, Pierluisi, and Toledo. Finally, the

court held that appellants' claims against Otero-Martinez

were barred because Otero-Martinez enjoyed absolute immunity

as a state prosecutor prosecuting the state's case.

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On March 31, 1995, appellants filed a motion for

reconsideration of this judgment claiming, among other

things, that the statute of limitations had tolled because he

was a minor during the relevant period. On January 30, 1996,

the district court denied the motion, again finding that the

statute of limitations barred the malicious prosecution claim

based on the alleged Fourth Amendment violation. Although

the district court acknowledged that Aybar was a minor during

much of the time preceding the filing of the complaint (a

fact which normally would toll the running of the statute of

limitations), the court concluded that Aybar's marriage

"emancipated" him under Puerto Rico law, and thus precluded

tolling. The district court upheld its earlier rulings for

substantially the same reasons it previously had enunciated.

Undaunted, the appellants then filed a motion,

pursuant to Federal Rules of Civil Procedure 52(b) and 59(e),

to amend and reconsider the district court's January 30, 1996

order.1 In this motion, appellants contended that Aybar was

not married during the period between March 25, 1993 (the

date of Aybar's arrest) and April 16, 1994 (the date of

1. Rule 52(b) states in pertinent part: "On a party's

motion filed no later than 10 days after entry of judgment,

the court may amend findings--or make additional findings--

and may amend the judgment accordingly. The motion may

accompany a motion for a new trial under Rule 59." Rule

59(e) dictates: "Any motion to alter or amend a judgment

shall be filed no later than 10 days after entry of the

judgment."

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Aybar's marriage to Morales-Laboy), and, therefore, that his

minority status in fact did toll the statute of limitations

until the latter date. On May 7, 1996, the district court

denied this motion. Although Judge Fuste recognized that

Aybar actually was not married during much of the time

preceding the filing of the complaint, he found that Aybar

represented to the court that in fact he was married during

the relevant time by referring to Morales-Laboy as his wife

and claiming injury to their conjugal relationship. After

reminding the appellants of their duties to the court

pursuant to Fed. R. Civ. P. 11, the district court concluded

that the appellants had failed to demonstrate that it

"erroneously assessed their averments." This appeal

followed.2

Standard of Review Standard of Review

Our standard of review of a dismissal pursuant to

Fed. R. Civ. P. 12(b)(6) is well established. We accept all

well-pleaded facts as true and we draw all reasonable

inferences in favor of the appellants. See Washington Legal

Found. v. Massachusetts Bar Found., 993 F.2d 962, 971 (1st

Cir. 1993). "Because a dismissal terminates an action at the

earliest stages of litigation without a developed factual

basis for decision, we must carefully balance the rule of

2. Aybar and Morales-Laboy do not appeal the district

court's dismissal as to either the Commonwealth of Puerto

Rico or Rossello, Pierluisi, and Toledo.

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simplified civil pleadings against our need for more than

conclusory allegations." Id. As we previously have

explained, however, "once a motion to dismiss or a motion for

summary judgment has been granted, the district court has

substantial discretion in deciding whether to reopen the

proceedings in order to allow the unsuccessful party to

introduce new material or argue a new theory." Mackin v.

City of Boston, 969 F.2d 1273, 1279 (1st Cir. 1992).

"Consequently, we will overturn the trial court's decision on

such a matter only if an appellant can persuade us that the

refusal to grant favorable reconsideration was a clear abuse

of discretion." Id.; see Vasapolli v. Rostoff, 39 F.3d 27,

36 (1st Cir. 1994) (explaining that "[w]e review a trial

court's motion to alter or amend a judgment for manifest

abuse of discretion"); Fragoso v. Lopez, 991 F.2d 878, 886

(1st Cir. 1993) ("The trial court's decision on such a motion

will be overturned only if the appellant convinces us that

the court committed a clear abuse of discretion.").

Discussion Discussion

To determine the scope of this appeal, we first

must resolve a threshold issue. Otero-Martinez and Crispin-

Reyes argue that Aybar appealed only the district court's

order of May 7, 1996, denying their second reconsideration

motion. If true, then the only substantive issue for our

resolution entails whether or not the district court abused

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its discretion in determining that Aybar's Fourth Amendment

claim was barred due to the expiration of the statute of

limitations. If, on the other hand, Aybar's notice of appeal

pertained not only to the May 7th order, but also to the

underlying judgment, then we must consider a number of issues

in addition to Aybar's Fourth Amendment claim.

"Under Fed. R. App. P. 4(a) timely motions under

Rules . . . 52(b) and 59 suspend the finality of the

original judgment, and the time for appeal from both that

judgment and denial of the motions runs from the entry of the

order denying the motions." Fiore v. Washington County

Community Mental Health Ctr., 960 F.2d 229, 234 (1st Cir.

1992); see Fed. R. App. P. 4(a)(4)(B) & (C). In this case,

appellants timely filed their first motion for

reconsideration of the district court's initial March 15,

1995 order dismissing their claims.3 Subsequent to the

district court's denial of appellants' motion on January 30,

1996, appellants filed a renewed motion for reconsideration

3. Although appellants did not label this a Rule 59(e)

motion for reconsideration, "regardless of how it is

characterized, a post-judgment motion made within ten days of

the entry of judgment that questions the correctness of a

judgment is properly construed as a motion to alter or amend

judgment under Fed. R. Civ. P. 59(e)." Skagerberg v. State

of Okla., 797 F.2d 881, 883 (10th Cir. 1986); see Acevedo-

Villalobos v. Hernandez, 22 F.3d 384, 390 (1st Cir. 1994).

The motion was timely because Rule 59(e) provides that "[a]

motion to alter or amend the judgment shall be served not

later than 10 days after entry of the judgment." See also

Fed. R. Civ. P. 6(a).

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on February 13, 1996. Following the district court's May 7,

1996 denial of the latter motion for reconsideration,

appellants appealed to this court on May 16, 1996. The

appellants thus followed the procedural guidelines to

preserve their appeal of the May 7th order. See Mariani-

Giron v. Acevedo-Ruiz, 945 F.2d 1, 2 n.3 (1st Cir. 1991).

The appellants, however, did not timely appeal the

underlying judgment. Fed. R. App. P 4(a)(1) dictates that

"the notice of appeal required by Rule 3 must be filed with

the clerk of the district court within 30 days after the date

of entry of the judgment or order appealed from." While an

initial motion for reconsideration filed within ten days of

the entry of the final judgment tolls the period in which a

litigant must file a notice of appeal, see Fed. R. Civ. P.

59(e); Fiore, 960 F.2d at 234; Feinstein v. Moses, 951 F.2d

16, 18 (1st Cir. 1991), a subsequent motion for

reconsideration served within ten days of the order denying

the initial motion for reconsideration but more than ten days

after the entry of the original judgment does not toll "the

time for appealing from that judgment," Acevedo-Villalobos v.

Hernandez, 22 F.2d 384, 389 (1st Cir. 1994); see Glinka v.

Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996) ("Allowing

subsequent motions to repeatedly toll the filing period for a

notice of appeal would encourage frivolous motions and

undermine a fundamental canon of our legal system, to promote

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the finality of judgments."); Wright v. Preferred Research,

Inc., 891 F.2d 886, 889 (11th Cir. 1990) ("Both the language

and purpose of Rule 4(a)(4) indicate that the time for appeal

is postponed only by an original motion of the type

specified. I.e., a motion to reconsider an order disposing

of such a motion will not further postpone the time to

appeal.") (quoting 9 Moore's Federal Practice 204.12[1]);

Charles L.M. v. Northeast Indep. Sch. Dist., 884 F.2d 869,

870 (5th Cir. 1989) ("[T]he second motion was a successive

motion for reconsideration, condemned by well-established

authority in this and other circuits. . . . [T]he filing of

the second motion did not toll the running of the thirty-day

time for appeal . . . .").

In this case, the district court dismissed

appellants' amended complaint on March 15, 1995. Appellants

filed their initial motion for reconsideration on March 31,

1996, thus tolling Rule 4's thirty day appeal period. The

district court denied appellants' motion for reconsideration

on January 30, 1996. Because the appellants' second motion

for reconsideration -- filed on February 13, 1996 -- was not

filed within ten days of the initial judgment -- the thirty

day appeal period of Rule 4 expired well before appellants

filed their May 16, 1997 notice of appeal. We thus lack

appellate jurisdiction to consider an appeal of the district

court's March 15, 1995 dismissal of the appellants'

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complaint. See Glinka, 90 F.3d at 74; Hernandez, 22 F.3d at

390; Wright, 891 F.2d at 889; Charles L.M., 884 F.2d at 870-

71.4

Because this appeal "concerns only the Rule 59(e)

denial,5 the question properly before us is whether the trial

4. The Charles L.M. court explained the difference between

an initial motion for reconsideration and successive

reconsideration motions as follows: "[W]here an appellant

files a second motion to reconsider 'based upon substantially

the same grounds as urged in the earlier motion,' the filing

of the second motion does not interrupt the running of the

time for appeal, and the appeal must be dismissed." 884 F.2d

at 870 (quoting Ellis v. Richardson, 471 F.2d 720, 721 (5th

Cir. 1973) (per curiam)); see Hernandez, 29 F.3d at 390. In

the instant case, appellants' second motion for

reconsideration returned to an issue raised unsuccessfully in

the first motion for reconsideration, namely the running of

the statute of limitations for a 1983 action in Puerto

Rico. As the Charles L.M. court further explained, "there is

no tolling where an order 'den[ies] timely postjudgment

motions under [rule 59] and leave[s] the original judgment in

effect and unchanged.'" Id. (quoting Brown v. United Ins.

Co., 807 F.2d 1239, 1242 (5th Cir. 1987) (per curiam)). In

this case, the district court's denial of the appellants'

first motion for reconsideration did not alter its previous

dismissal of their complaint because it reached the same

conclusion. See Harrell v. Dixon Bay Transp. Co., 718 F.2d

123, 128 n.4 (5th Cir. 1983) (indicating that original

summary judgment was unchanged by amended judgment because

both judgments denied all relief); 9 Moore's Federal Practice

204.12[1] (indicating that in order for second

reconsideration motion again to toll appeal period, the trial

court's disposition of the first motion "must result[] in a

judgment which is substantively altered"). "The interest of

finality requires that parties generally get only one bite at

the rule 59(e) apple for purpose of tolling the time for

bringing an appeal." Charles L.M., 884 F.2d at 871.

5. We note that appellants argue that they clearly intended

to appeal the district court's underlying dismissal of their

claims. See In re San Juan Dupont Plaza Hotel Fire

Litigation, 45 F.3d 564, 567 (1st Cir. 1995) (ruling that a

"mistake in designating a judgment in the notice of appeal

will not ordinarily result in a loss of the appeal 'as long

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court abused its discretion in denying . . . [appellants'

second] motion to vacate the judgment of dismissal."

Acevedo-Ruiz, 945 F.2d at 3. In their second motion for

reconsideration, appellants argued that the district court

improperly ruled that their Fourth Amendment claim was time

barred on the grounds that one year had elapsed from the time

of Aybar's arrest and that Aybar's marriage to Morales-Laboy

functioned to preclude application of the rule permitting the

one year statute of limitations to be tolled for a minor

plaintiff until the minor's twenty-first birthday.6

Appellants supplied the district court with evidence that

they were not married until April 16, 1994, almost thirteen

months after Aybar's arrest on March 25, 1993. Appellants

insisted that the one year statute of limitations for their

Fourth Amendment claim had not expired because Aybar was an

as the intent to appeal from a specific judgment can be

fairly inferred from the notice, and appellee is not misled

by the mistake'" (quoting Kelly v. United States, 789 F.2d

94, 93 n.3 (1st Cir. 1990))). We need not evaluate this

assertion, however, in light of our determination that we

lack appellate jurisdiction to consider an appeal of any

decision other than the May 7, 1996 order in this case.

6. The applicable statute of limitations in this 1983 case

is one year. See Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610

(1st Cir. 1994). This one year period is tolled until a

plaintiff's twenty-first birthday in the event that the

plaintiff is a minor at the time the action is filed. See

P.R. Laws Ann. tit. 32, 254(1) (1991). If, however, a

plaintiff marries while still a minor, the statute of

limitations ceases to toll as of the date of the marriage.

See P.R. Laws Ann. tit. 32, 932, 933 (1991); Martinez v.

Estado Libre Asociado, 110 P.P.R. 877 (1981).

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unemancipated minor during this time and, therefore, the

statute of limitations was tolled until his twenty-first

birthday on February 7, 1994. Appellants indicated that they

filed their complaint on July 1, 1994, less than five months

after Aybar turned twenty-one and thus more than seven months

before the one year limitations period would expire, and

argued, therefore, that their claim was not time barred.

The district court concluded that the appellants

made representations that led it to believe that they were

married at the time of the alleged constitutional violations.

Specifically, appellants "alleged damages to their conjugal

partnership. . . . Morales alleged damages stemming from the

alleged malicious prosecution of her husband." Moreover,

according to the district court, appellants had several

opportunities to clarify their pleadings, but failed to do so

when they amended their complaint or when they failed to

respond to the motion to dismiss. Consequently, the district

court ruled that it "reasonably inferred that plaintiffs were

married at the time of the alleged incidents."

We consider the district court's decision in light

of the law governing the disposition of a Rule 59(e) motion.

"Rule 59(e) allows a party to direct the

district court's attention to newly

discovered material evidence or a

manifest error of law or fact and enables

the court to correct its own errors and

thus avoid unnecessary appellate

procedures. The rule does not provide a

vehicle for a party to undo its own

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procedural failures, and it certainly

does not allow a party to introduce new

evidence or advance arguments that could

and should have been presented to the

district court prior to the judgment.

Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996)

(citations omitted); see Vasapolli, 39 F.3d at 36-37; Hayes

v. Douglas Dynamics, Inc., 8 F.3d 88, 91 n.3 (1st Cir. 1993);

F.D.I.C. v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir.

1992); National Metal Finishing Co., Inc. v.

BarclaysAmerican/Commercial, 899 F.2d 119, 123 (1st Cir.

1990). In this case, we do not question that appellants

directed the district court to a "manifest error of fact" in

their second reconsideration motion: Contrary to the

district court's determination, appellants were not married

during the period in question.

That the appellants illuminated an error of fact,

however, does not necessitate that we reverse the district

court's decision. "Except for motions to amend based on

newly discovered evidence, the trial court is only required

to amend its findings of fact based on evidence contained in

the record. To do otherwise would defeat the compelling

interest in the finality of litigation." Fontenot v. Mesa

Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986); see Lyons

v. Jefferson Bank & Trust, 793 F. Supp. 989, 991 (D. Colo.

1992), aff'd in part, rev'd in part, 994 F.2d 716 (10th Cir.

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1993). In the instant case, as in Fontenot and Lyons, the

district court

drew an eminently reasonable inference

from the evidence in the record and

relied on that inference in making its

findings of fact. That other evidence

not in the record may negate the

[d]istrict [c]ourt's inference is beside

the point. Blessed with the acuity of

hindsight, [appellants] . . . may now

realize that . . . [they] did not make .

. . [their] initial case as compelling as

. . . [they] might have, but . . .

[they] cannot charge the [d]istrict

[c]ourt with responsibility for that

failure through this Rule 52(b) motion.

Fontenot, 791 F.2d at 1220; see Vasapolli, 39 F.3d at 36-37

("Unlike the Emperor Nero, litigants cannot fiddle as Rome

burns. A party who sits in silence[] [and] withholds

potentially relevant information . . . does so at his

peril."); Hayes, 8 F.3d at 91 n.3 (noting that "none of the

information presented [to the district court in support of

plaintiff's motion for reconsideration] was new, nor was it

unavailable when the summary judgment was filed"); World

Univ., 978 F.2d at 16 (indicating that there was no reason

why appellant could not have asserted its argument before the

district court and appellant's argument did not present newly

discovered evidence).7

7. We recognize that this case comes to us as having been

dismissed pursuant to Rule 12(b)(6), rather than Rule 56, at

which stage courts afford plaintiffs substantial latitude to

develop their claims. See Acadia Motors, Inc. v. Ford Motor

Co., 44 F.3d 1050, 1059 (1st Cir. 1995). This fact, however,

does not persuade us that in this case the district court

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In this case, as in Fontenot, Vasapolli, Hayes, and

World Univ., the evidence that appellants submitted to

support the argument they advanced for the first time in

their second motion for reconsideration was neither new nor

unavailable at the time the district court entered judgment

on March 15, 1995. In their motion to dismiss, Rossello,

Pierluisi, and Toledo argued that the one year statute of

limitations period for appellants' Fourth Amendment claim had

expired. The appellants chose not to defend against this

motion, and thus did not reveal the fact that Aybar's

minority status tolled the statute of limitations because he

and Morales-Laboy were not married until April 1994.8

abused its discretion. See Hernandez, 22 F.3d at 391

(upholding district court's denial of second Rule 59(e)

motion seeking reconsideration of district court's dismissal

pursuant to Rule 12(b)(6)); Figgie Int'l, Inc. v. Miller, 966

F.2d 1178, 1180 (7th Cir 1992) (ruling, in context of

district court's initial dismissal pursuant to Rule 12(b)(6),

that "[b]ecause Figgie presented no competent evidence that

was not previously available, the district court's

[subsequent] decision denying Figgie's motion under the

traditional standards governing Rule 59(e) did not constitute

an abuse of discretion").

8. At oral argument before this court, appellants indicated

that Otero-Martinez and Crispin-Reyes did not join the motion

to dismiss and explained that appellants did not oppose

Rossello, Pierluisi, and Toledo's motion because they

desired to drop these three defendants from the suit. It is

interesting to note, however, that in their first Rule 59(e)

motion, appellants petitioned the district court to

reconsider not only its sua sponte ruling as to Otero-

Martinez and Crispin-Reyes, but also its ruling as to

Rossello, Pierluisi, and Toledo. Appellants' explanation for

their failure to raise the evidence of their marital status

before the district court rendered its judgment dismissing

their claims thus is unpersuasive.

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Appellants did not even mention Aybar's marital status in

their first motion for reconsideration, in which they did

assert that Aybar's minority status functioned to toll the

statute of limitations.9 It was not until they filed their

second Rule 59(e) motion that appellants informed the

9. Appellants, in fact, referred to each other as "husband"

and "wife" in this first Rule 59(e) motion, asserting that

Morales-Laboy "suffered not only her own humiliation as a

wife but also suffered a sense of loss of pride, self esteem

[sic], loss of husband's income, as well as the day by day

suffering of her husband's own humiliation, physical and

mental anguish, depression and loss of reputation." (emphasis

added).

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district court that they were not married during the time in

question.10

In light of these circumstances, we find that the

district court did not clearly abuse its discretion in

denying appellants' second motion for reconsideration. See

Vasapolli, 39 F.3d at 27; Hernandez, 22 F.3d at 391; Hayes, 8

F.3d at 91 n.3; Fragoso, 991 F.2d at 888; World University,

978 F.2d at 16; Figgie Int'l, Inc. v. Miller, 966 F.2d 1178,

1180 (7th Cir. 1992); Fontenot, 791 F.2d at 1220. We thus

affirm the district court's decision to deny appellants'

second motion for reconsideration.

10. Appellants contend that they had no cause to provide the

evidence of their marital status prior to the district

court's denial of their first Rule 59(e) motion because they

had no reason to believe that the district court would

determine that they were married during the period in

question. Appellants assert that their pleadings merely

indicated that they were married at the time they filed the

complaint and that Morales-Laboy could claim injury to their

conjugal partnership before their marriage because they lived

as common law husband and wife and shared a community of

goods at this time. See P.R. Laws Ann. tit. 31, 3622,

3623, 3641(3) (1991); Caraballo Ramirez v. Acosta, 104 P.P.R.

474, 481 (1975). We doubt that the authority appellants cite

supports the conclusion that they constituted common law

husband and wife during the period in question, and thus

legitimately could claim injury to their conjugal

partnership. We believe the district court, considering the

pleadings in a light favorable to the appellants, see Acadia

Motors, 44 F.3d at 1059, reasonably concluded that they were

married at the time of Aybar's arrest. We do not need to

delve into this issue, however, because appellants' failure

to adequately elucidate the relevant facts of the case either

when they faced a motion to dismiss or when they filed their

first Rule 59(e) motion relieves the district court of an

obligation to correct its erroneous factual determination in

this case. See Fontenot, 791 F.2d at 1220.

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Costs to appellees. Costs to appellees

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