United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM ORDER AND OPINION
M. BROWN, UNITED STATES DISTRICT JUDGE.
declaratory judgment action is before the Court on Timothy
Brasfield's motion seeking reconsideration of the August
25, 2017, order denying his motion to dismiss for lack of
jurisdiction. Doc. #20.
October 5, 2015, Brasfield filed a complaint in the Circuit
Court of Alcorn County, Mississippi, against Archer Landscape
Group, LLC, Gerald Sellers (individually and d/b/a Archer
Landscape Group, LLC), and Richard Strachan. Doc. #1 at 14.
Brasfield's state court complaint alleges claims for
general and special acts of negligence related to injuries he
suffered on or about November 30, 2013, when, while working
as an employee of Archer Landscape, he was “grabbed by
a piece of … machinery and pulled into the equipment
causing [him] serious and permanent bodily injury.”
Id. at 15-16.
September 9, 2016, Wesco Insurance Company filed a complaint
in this Court seeking a declaratory judgment that the
insurance policy it issued to Archer Landscape included a
valid employer's liability exclusion and, as a result of
the exclusion, Wesco “has no duty to defend, or
indemnify, Archer Landscape … and/or Gerald Sellers,
related to the claims asserted against them in the Circuit
Court of Alcorn County, Mississippi, by Mr. Timothy
Brasfield.” Doc. #1 at 1, 12. That day, the case was
assigned to United States District Judge Sharion Aycock.
December 12, 2016, Brasfield moved to dismiss Wesco's
complaint “due to a lack of jurisdiction, said
jurisdiction being vested in the state court prior to the
filing in federal court.”Doc. #14 at 4. Wesco responded in
opposition on December 27, 2016. Doc. #15. On August 25,
2017, Judge Aycock denied Brasfield's motion to dismiss.
week later, Brasfield filed a motion for reconsideration of
the August 25 order. Doc. #20. Wesco responded in opposition
on September 15, 2017. Doc. #24. On October 11, 2017, Judge
Aycock recused herself and the case was assigned to the
undersigned district judge. Doc. #25.
February 5, 2018, Wesco filed a motion to amend its complaint
because the “Complaint on file with the Clerk appears
to be missing page number 13. However, the records maintained
by counsel for [Wesco] reflect that page 13 was submitted to
the Clerk for filing at the time of the initial filing of
this mater.” Doc. #36 at 1. Brasfield did not respond,
and the motion to amend was granted on February 27, 2018.
Doc. #37. Wesco filed its amended complaint the same
party seeks reconsideration of a non-final order, the proper
course is to treat the motion as brought under Rule
54(b). Bombardier Corp. v. Nat'l R.R.
Passenger Corp., 333 F.3d 250, 253 (D.C. Cir. 2003)
(“[O]rders denying motions to dismiss are not final
decisions because such orders ensure that litigation will
continue ….”); see Lucas v. District of
Columbia, 214 F.Supp.3d 1, 4 (D.D.C. 2016)
(“[I]nasmuch as plaintiff seeks reconsideration of a
non-final order, Federal Rule of Civil Procedure 54(b)
governs ….”). Under Rule 54(b):
[A]ny order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b).
Although the source of the court's authority to revise or
amend an order or judgment is different for interlocutory
orders than for final orders or judgments, many of the same
policy considerations apply both to motions for
reconsideration under Rule 54(b) and to motions for
reconsideration under Rule 59(e). Accordingly, ...