United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING MOTION FOR NEW TRIAL OR TO ALTER OR
GUIROLA, JR. UNITED STATES DISTRICT JUDGE.
THE COURT is the  Motion for New Trial or to Alter or
Amend a Judgment filed by Dr. Robert Wiemer. Wiemer objects
to the Court's entry of a  Default Judgment against
him after a hearing conducted to establish the appropriate
form and amount of damages. Wiemer brings this motion
pursuant to Federal Rule of Civil Procedure Rule 59(a) and
59(e). Dr. Rubino filed a response in opposition. After due
consideration, the Court finds that Wiemer's Motion
should be denied.
Motion for a New Trial
first argues that he was denied due process when presented
with Rubino's Sworn Statement in Support of Damages one
hour before the hearing. The Sworn Statement is essentially
an accounting of all damages Rubino alleged flowed from her
successful claims against Wiemer. (See ECF No. 196.)
Wiemer argues that his counsel was denied an adequate
opportunity to review the Sworn Statement or its attachments
before the hearing, and therefore was denied adequate notice
of Rubino's allegations.
responds that the Sworn Statement was introduced into
evidence during the hearing to substantiate her damages
demand, which was the purpose of the hearing. There was no
requirement imposed by a rule or the Court that she produce
it prior to the hearing. Rubino could have simply entered it
into evidence without any prior notice at all to counsel
opposite. Rubino argues that Wiemer was not denied due
process when the Court denied his counsel additional time to
review the Sworn Statement at the beginning of the damages
district court may grant a new trial under Federal Rule of
Civil Procedure 59(a) when it is necessary “to prevent
injustice.” Stafford v. Lamorak Ins. Co., 754
Fed.Appx. 241, 243 (5th Cir. 2018). Although Rule 59(a) does
not delineate precise grounds for granting a new trial, the
Fifth Circuit has held that Rule 59(a) allows the district
court to grant a new trial if it “finds the verdict is
against the weight of the evidence, the damages awarded are
excessive, the trial was unfair, or prejudicial error was
committed in its course.” Smith v. Transworld
Drilling Co., 773 F.2d 610, 612-13 (5th Cir. 1985).
“The decision to grant or deny a motion for new trial
is a matter for the trial court's discretion; [and the
appellate court] will reverse its ruling only for an abuse of
discretion.” Seibert v. Jackson Cty., 851 F.3d
430, 438 (5th Cir. 2017).
is no showing of grounds for a new trial in this case.
Rubino's allegations against Wiemer not only set out the
type of damages she sought for each claim, but also
quantified them when possible. (See 1st Am. Answer,
Affirmative Defenses & Counterclaim 18-34, ECF No. 49.)
Rubino's Sworn Statement provided documentary support for
her damage allegations. Under these circumstances, Wiemer
cannot show that the Sworn Statement resulted in prejudice to
Wiemer or an unfair proceeding. The Court will exercise its
discretion to deny Wiemer's request for a new trial.
Motion to Alter or Amend Judgment
makes mention of an alternative request for relief - that the
Court “alter or amend the default judgment so as to
comport with the evidence presented, pursuant to [Fed. R.
Civ. P.] Rule 59(e).” (Wiemer Mot. 2, ECF No. 229.)
“A 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 Cty., 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).
The Court's decision on a Rule 59(e) motion is reviewed
only for abuse of discretion. Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990).
makes a bare-bones assertion that “[t]he findings of
fact by the Court which were cited in support of a Default
Judgment herein were erroneous . . . . ” He offers no
analysis or record evidence and fails to explain how the
Court's findings of fact were erroneous. Wiemer does not
show that the Court should exercise its discretion under Rule
59(e) to alter or amend the judgment against him.
IS THEREFORE ORDERED AND ADJUDGED that the 
Motion for New Trial or to Alter or Amend a Judgment filed by
Dr. Robert Wiemer is DENIED.