FRANCISCO CHOMYO GARCIA, II, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF VICTORIA AVA LYNN GARCIA, DECEASED AND ANY AND ALL WRONGFUL DEATH BENEFICIARIES OF VICTORIA AVA LYNN GARCIA, DECEASED, Plaintiffs,
PREMIER HOME FURNISHINGS, TERRY HOOD D/B/A AMERICAN HERITAGE OF ALABAMA, HOUSTON WOOD PRODUCTS, INC. AND JOHN DOE DEFENDANTS 1-10, Defendants.
MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge.
This matter is before the Court on the Plaintiffs' Motion to Reconsider . Having considered the submissions of the parties, the record and the applicable law, the Court finds that the motion should be denied.
On August 6, 2013, the Court found that the Plaintiffs had no reasonable basis for recovery against the Defendant Premier Home Furnishings ("Premier") since it was an "innocent seller" of the product alleged to have caused injury in this case under section 11-1-63(h) of the Mississippi Code. ( See Mem. Op. & Order .) The Court thus determined that Premier was improperly joined, and denied Plaintiffs' Motion to Remand  predicated on the absence of complete diversity of citizenship due to the Plaintiffs and Premier being citizens of Mississippi. In addition, the Court dismissed Premier from the litigation without prejudice. Plaintiffs' Motion to Reconsider  requests that the Court nullify its prior order and remand this action to the Circuit Court of Forrest County Mississippi.
A. Standard of Review
The Federal Rules of Civil Procedure do not explicitly recognize a motion to reconsider. However, this Court and others consider such motions under Federal Rule of Civil Procedure 59(e) (motion to alter or amend a judgment), when they are filed within twenty-eight days of the challenged judgment or order. See, e.g., B & C Marine, LLC v. Cabiran, No. 12-1015, 2013 WL 950562, at *1 (E.D. La. Mar. 11, 2013); Garrison v. Tex. S. Univ., No. H-11-2368, 2013 WL 247028, at *1 (S.D. Tex. Jan. 22, 2013); Insurasource, Inc. v. Fireman's Fund Ins. Co., No. 2:11cv82, 2012 WL 1365083, at *1-2 (S.D.Miss. Apr. 19, 2012). On August 13, 2013, only seven (7) days after the entry of the subject Order , Plaintiffs submitted an unopposed request to file a motion to reconsider on or before September 30, 2013. ( See Mot. for Ext. of Time .) The Court granted this request and Plaintiffs filed their Motion to Reconsider  on September 9, 2013. Therefore, the Court will reference Rule 59(e) and its interpretive precedent in this opinion and order.
The Court only recognizes three grounds for reconsideration under Rule 59(e): "(1) an intervening change in controlling law, (2) the availability of new evidence not previously available, and (3) the need to correct a clear error of law or prevent a manifest injustice.'" Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D. 493, 494 (S.D.Miss. 2000) (quoting Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990)). Plaintiffs' motion is limited to the third ground of the above-quoted standard. With respect to this ground, the Court has previously cautioned that the litigant "should evaluate whether what may seem to be a clear error of law is in fact simply a point of disagreement between the Court and the litigant." Atkins, 130 F.R.D. at 626. A Rule 59(e) motion is not a proper vehicle for raising arguments or legal theories that could have been presented prior to the entry of the challenged ruling. See Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (citing Marseilles Homeowners Condo. Ass'n v. Fidelity Nat. Ins. Co., 542 F.3d 1053, 1058 (5th Cir. 2008)), cert. denied, 2013 WL 868621 (Oct. 7, 2013). "Whatever may be the purpose of Rule 59(e), it should not be supposed that it is intended to give an unhappy litigant one additional chance to sway the judge." Pham, 193 F.R.D. at 494.
As an initial matter, Plaintiffs contend that there was some "confusion" with respect to whether the Court would resolve the issue of Premier's improper joinder based on the pleadings or via a summary inquiry, and that the confusion resulted in the Plaintiffs' failure "to present by discovery or argument all of the overwhelming facts and legal arguments that clearly establish the fault of Premier." (Mot. to Recon.  at pp. 1-2.) This contention is not well taken. The Court's Order , permitting remand related discovery on certain issues for a period of ninety days, should have put all the parties on notice that the Court would, "in its discretion, pierce the pleadings and conduct a summary inquiry" in deciding if the Plaintiffs might be able to recover against Premier. Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 401 (5th Cir. 2013) (citation omitted). Further, Plaintiffs' Reply  in support of their remand motion referenced "the testimony given and the evidence produced during remand related discovery" in opposition to Defendants' position that Premier was an "innocent seller" under Mississippi law. (Reply  at pp. 1-2.) Finally, the prudent course for the Plaintiffs would have been for them to bring the issue of any "confusion" regarding the procedure for resolving the remand motion to the Court's attention before it decided the motion.
The Court also notes that all of the evidence presented and arguments urged in support of reconsideration of the Court's Order  could have been offered prior to the entry of the ruling. In other words, Plaintiffs cite no authorities handed down or evidence discovered subsequent to August 6, 2013, in their Motion to Reconsider . It is well established that Rule 59(e) is an improper "vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment." Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004) (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). At the same time, a motion for reconsideration implicates two significant judicial imperatives: "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. (citing Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990)). There has been no final judgment in this case and jurisdictional issues have precluded the entry of a case management order. Therefore, the need to end this litigation is not yet implicated and the Court considers below Plaintiffs' positions in support of reconsideration even though they could have been asserted prior to the entry of the Order . Plaintiffs' remaining arguments not specifically addressed herein have been considered and fail to alter the Court's ruling on the Motion to Reconsider .
1. Premier's Alleged Failure to Follow Consumer Product Safety Commission Regulations
Plaintiffs contend that they could recover from Premier due to its failure to comply with regulations promulgated by the Consumer Product Safety Commission ("CPSC"). The CPSC "prescribes requirements for bunk beds to reduce or eliminate the risk that children will die or be injured from being trapped between the upper bunk and the wall or in openings below guardrails or in other structures in the bed." 16 C.F.R. § 1513.1. For example, bunk beds intended to be used by children must contain a warning label advising, inter alia, to "[n]ever allow a child under 6 years on upper bunk". 16 C.F.R. § 1513.5. Such bunk beds must also include written instructions pertaining to mattress size and certain safety warnings. See 16 C.F.R. § 1513.6. Title 15 U.S.C. § 2068 makes it unlawful for any person to "sell" or "manufacture for sale" any consumer product "that is not in conformity with an applicable" CPSC regulation. 15 U.S.C. § 2068(a)(1). For purposes of resolving the remand motion, the Court determined that the bunk beds sold by Premier to the Plaintiff Francisco Chomyo Garcia, II did not include any warning labels or written instructions of any kind. Thus, Plaintiffs allege that at the very least, they would be entitled to a negligence per se instruction against Premier for its violation of CPSC regulations.
Plaintiffs' argument fails to require amendment of the Court's ruling that Premier is protected from liability under section 11-1-63(h) for several reasons. First, the statute does not contain an exception to the protection from liability afforded to "innocent sellers" based on a violation of a federal regulation. Section 11-1-63 provides that a seller shall not be liable in any action alleging that a product is defective unless: (1) "the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought;" (2) "the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or" (3) "the seller had actual or constructive knowledge of the defective condition of the product at the time he supplied the product." Miss. Code Ann. § 11-1-63(h). No rule of statutory construction allows the Court to create a fourth exception based on the sale of a product violating a ...