United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE.
26, 2018, the Court entered a Memorandum Opinion and Order
 granting Defendant Jerome McDuffie's Motion to
Substitute  the United States of America as the proper
defendant, and granting Defendant's Motion to Dismiss
. Plaintiffs filed a Motion for Reconsideration  of
that order. For the reasons below, the Court
denies Plaintiffs' Motion for
motion asking the court to reconsider a prior ruling is
evaluated either as a motion . . . under Rule 59(e) or . . .
under Rule 60(b). The rule under which the motion is
considered is based on when the motion is filed. If the
motion is filed within twenty-eight days after the entry of
judgment, the motion is treated as though it was filed under
Rule 59, and if it was filed outside of that time, it is
analyzed under Rule 60.” Demahy v. Schwarz Pharma,
Inc., 702 F.3d 177, 182 n. 2 (5th Cir. 2012).
Plaintiffs' Motion for Reconsideration  was filed
within twenty-eight days of the subject ruling. Therefore,
Rule 59(e) applies.
Rule 59(e) motion calls into question the correctness of a
judgment.” Templet v. Hydrochem, Inc., 367
F.3d 473, 478 (5th Cir. 2004). There are three grounds for
altering 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.” Williamson Pounders Architects, P.C. v.
Tunica County, 681 F.Supp.2d 766, 767 (N.D. Miss. 2008).
Rule 59(e) motions are “not the proper vehicle for
rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of judgment,
” Templet, 367 F.3d at 478, and they
“should not be used to . . . re-urge matters that have
already been advanced by a party.” Nationalist
Movement v. Town of Jena, 321 Fed.Appx. 359, 364 (5th
Cir. 2009). It is “an extraordinary remedy that should
be used sparingly.” Id. Before filing a Rule
59(e) motion, a party “should evaluate whether what may
seem to be a clear error of law is in fact simply a point of
disagreement” with the Court. Atkins v. Marathon
LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss. 1990).
Plaintiffs argue that the Court erred in declining to
consider their unauthorized sur-reply. Plaintiffs are
mistaken. This Court's Local Rules do not permit the
unauthorized filing of sur-replies. See L.U.Civ.R.
7(b). On this subject, the Court's prior decisions are
clear. See, e.g. Lighthouse Rescue Mission, Inc. v. City
of Hattiesburg, Miss., No. 2:12-CV-184-KS-MTP, 2014 WL
1653108, at *2 n. 3 (S.D.Miss. Apr. 23, 2014); Patton v.
Bryant, No. 3:13-CV-485-DPJ-FKB, 2014 WL 36618, at *5
(S.D.Miss. Jan. 6, 2014); see also Jefferson v. Christus
St. Joseph Hosp., 374 Fed.Appx. 485, 489 (5th Cir. 2010)
(district court did not abuse discretion in refusing to
consider sur-reply filed without leave); Larcher v.
West, 147 F.Supp.2d 538, 539 (N.D. Tex. 2001).
Plaintiffs argue that the Court should consider new evidence
that was not timely presented before it ruled - specifically,
testimony provided in a congressional committee hearing.
Plaintiffs contend that the testimony demonstrates that
McDuffie violated Department of Justice policy by talking to
a reporter about uncharged conduct. Even if the Court assumes
that McDuffie violated DOJ policy, his actions were still
within the course and scope of his employment. As the D.C.
Circuit recently held: “Extensive precedent makes clear
that alleging a federal employee violated policy or even laws
in the course of her employment - including specific
allegations of defamation or of potentially criminal
activities - does not take that conduct outside the scope of
employment.” Smith v. Clinton, 886 F.3d 122,
126 (D.C. Cir. 2018). The D.C. Circuit's reasoning
mirrors that of this Court's previous ruling: “What
matters is whether the underlying activity itself was part of
the employee's duties.” Id. at 127. It is
undisputed that public and media relations were part of
McDuffie's job duties, as explained in the Court's
Plaintiffs argue that the new evidence they provided entitles
them to conduct discovery as to the scope of McDuffie's
duties. The Court rejects this argument for the same reasons
provided in its prior order. A plaintiff challenging the
Government's Westfall Act certification has no right to
conduct discovery as to the defendant's scope of
employment unless he “alleges facts that plausibly
suggest [the defendant] acted outside the scope of her
employment.” White v. United States, 419
Fed.Appx. 439, 443 (5th Cir. 2011); see also Dillon v.
State of Miss., Military Dep't, Army National
Guard, 827 F.Supp. 1258, 1264 (S.D.Miss. 1993). As the
Court previously held, Plaintiffs did not allege facts which
plausibly suggest McDuffie acted outside the scope of his
employment. The “new evidence” does not alter
these reasons, the Court denies
Plaintiffs' Motion for Reconsideration  of its prior