United States District Court, S.D. Mississippi, Western Division
ORDER AND OPINION
BRAMLETTE, UNITED STATES DISTRICT JUDGE
LLC moves the Court to reconsider its order dismissing
without prejudice Faraway's counterclaims against Hudson
Specialty Insurance Company for breach of contract, tortious
breach of contract, and gross negligence. For the reasons
that follow, the motion is DENIED.
Court may revise an interlocutory order at any time for any
reason before it enters final judgment. Fed.R.Civ.P. 54(b);
United States v. Renda, 709 F.3d 472, 479 (5th Cir.
Court's order granting Hudson's motion to dismiss did
not adjudicate all of Faraway's counterclaims or decide
the rights and liabilities of all parties. It is therefore
interlocutory. Fed.R.Civ.P. 54(b).
to reconsider interlocutory orders under Rule 54(b) involve
some of the policies behind Rule 59(e) requests to alter or
amend an order or judgment. Hillie v. Williams, Civ.
A. No. 4:17-CV-69-DMB-DAS, 2018 WL 280531, at *2 (N.D. Miss.
Jan. 3, 2018). So courts apply the Rule 59(e) standard to
Rule 54(b) motions to reconsider. See eTool Development,
Inc. v. Nat'l Semiconductor Corp., 881 F.Supp.2d
745, 748 (E.D. Tex. 2012) (collecting cases).
that standard here, the Court declines to reconsider its
order. Faraway has neither “clearly established”
that the Court's ruling was “manifestly
erroneous” nor offered newly-discovered, relevant
evidence or authority justifying reconsideration.
Schiller v. Physicians Resource Grp., Inc., 342 F.3d
563, 567 (5th Cir. 20013). The cases Faraway cites do not
address the legal conclusion that supplied the basis for its
counterclaims: That Talex's submission of a proof of loss
triggered Hudson's obligations to Faraway under the
policy's union mortgage clause.
motion and supporting brief suggest that Faraway misreads the
Court's order. The Court emphasizes three points.
the Court's dismissal was without prejudice. That means
that Faraway may move to amend. See Bracey v. City of
Jackson, Miss., Civ. A. No. 3:16-CV-657-DPJ-FKB, 2017 WL
1086117, at *3 n.1 (S.D.Miss. Mar. 20, 2017). Faraway's
request that the Court “allow” it to file an
amended counterclaim suggests that Faraway wrongly concludes
that the Court dismissed its counterclaims with
the Court dismissed three of Faraway's counterclaims
because they rested on the same theory. That theory reasoned
that Hudson breached union mortgage clause-derived
obligations to Faraway that arose when Talex submitted its
proof of loss to Hudson. And that theory depended on
Faraway's allegation that Talex's submission of a
proof of loss triggered Hudson's obligations to Faraway
under the policy's union mortgage clause. That allegation
is really a legal conclusion, and one that is incorrect as a
matter of law. Because three of Faraway's counterclaims
sprang from that particular legal conclusion, the Court ruled
that those counterclaims were not plausibly pleaded.
the Court did not opine on the viability of putative
counterclaims for breach of contract, tortious breach of
contract, and gross negligence based on factual allegations
showing that Hudson's obligations under the union
mortgage clause were triggered in another way or by another
event. Rather, the Court held that Hudson's obligations
were not triggered when and how Faraway alleged -- through
Talex's submission of a proof of loss.
is free to seek leave to amend its complaint to allege facts
showing that another event, such as its assertion of an
independent right to payment in its answer to Hudson's
complaint, triggered Hudson's union mortgage clause-based
obligations to Faraway. But Faraway cannot amend its
counterclaim by memorandum brief. If Faraway wishes to pursue
that theory or another, it must move the Court for leave to
file a second amended counterclaim.
IT IS ORDERED that Faraway, LLC's motion [Docs.