Lupo v. Wyeth-Ayerst Laboratories

• Decision Date: 23 July 1997
• Docket Number: No. 1:96cv525 (TH).,1:96cv525 (TH).
• Citation: 4 F.Supp.2d 642
• Parties: James Doyle LUPO, Plaintiff, v. WYETH-AYERST LABORATORIES and American Home Products Corporation, Defendants.
• Court: U.S. District Court — Eastern District of Texas

4 F.Supp.2d 642

James Doyle LUPO, Plaintiff, v. WYETH-AYERST LABORATORIES and American Home Products Corporation, Defendants.

No. 1:96cv525 (TH).

United States District Court, E.D. Texas, Beaumont Division.

July 23, 1997.

John R. Craddock, Houston, TX, for Plaintiff.

M. Carter Crow & Lawrence H. Clore, Houston, TX, for Defendants.

MEMORANDUM OPINION

HEARTFIELD, District Judge.

1. The court denies Plaintiff's Motion for New Trial [52].

Background

2. Plaintiff, James Doyle Lupo, sued defendants, Wyeth-Ayerst Laboratories (Wyeth) and American Home Products Corporation (American), for discriminating against him based on age, in violation Section 21.051 of the Texas Labor Code (Section 21.051),¹ and for intentional infliction of emotional distress. Mem.Op. ¶ 1. Following the close of discovery, the court granted the motion of Wyeth and American for summary judgment on both of Lupo's claims. Mem. Op. ¶¶ 2, 54. It explained this disposition in a Memorandum Opinion.²

3. On June 5, 1997, ten days after the entry of a Rule 58 judgment, Lupo filed a Motion for New Trial (Motion) as to his age discrimination claim.³ Compare Mem.Op. (filed May 21, 1997) with Mot. (filed June 5, 1997). See generally Fed.R.Civ.P. 6. In doing so, he essentially sought reconsideration of the summary judgment ruling on that cause of action pursuant to Federal Rule of Civil Procedure 59(e) (Rule 59(e)). Compare Mot. at 1, 15 with Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.1990), cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993) and Beanal v. Freeport-McMoRan, Inc., Civ.A. No. 96-1474, 1996 WL 476879, at *1 (E.D.La. Aug.22, 1996).

4. Eighteen marked exhibits and a June 5, 1997, affidavit by Lupo (June 5 affidavit) were attached to the Motion.⁴ See Mot. Exhibits 3, 5, 8,⁵ 9⁶ and 10,⁷ as well as the June 5 affidavit, had never appeared in the summary judgment record.⁸ Compare Summ. J.Resp. (Exs. A, I and portions of Selected Product Reports) and Rejoinder (Exs. 4, 8 and 15) with Mot. (Exs. 1, 2, 4, 6, 7, 11, 12, 13, 14, 15, 16, 17 and 18). Lupo had intended to introduce Exhibits 5 and 9 at trial. Compare Mot. (Exs. 5 and 9) with Am. Ex. List (Exs. 38 and 171).

5. Other exhibits to the Motion included both materials in the summary judgment record and new evidence. Exhibits 1, 7, 11, 12, 13, 14, 15,⁹ and 18¹⁰ presented portions of Selected Product Reports that Lupo had attached to the Response or Rejoinder, as well as parts of Selected Product Reports that he had not affixed to either the Response or Rejoinder. Compare Summ.J.Resp. (Selected Product Report excerpt labeled DL 01173) with Mot. (Ex. 1). Compare Summ. J.Resp. (Selected Product Report excerpt labeled DL 01163) with Mot. (Ex. 7). Compare Summ.J.Resp. (excerpts of Selected Product Reports labeled Wyeth 12684, DL 01144, Wyeth 14378 and DL 01156) and Rejoinder (Exs. 4 and 8) with Mot. (Exs. 11-15). Compare Summ.J.Resp. (excerpts of Selected Product Reports labeled DL 01189, DL 01163, DL 01187, DL 01161, DL 01185, DL 01159, DL 01183, DL 01158, DL 01181, DL 01157, DL 01179, DL 01156, DL 01175, DL 01153, DL 01173, DL 01152 and DL 01144) and Rejoinder (Exs. 4 and 8) with Mot. (Ex. 18). Lupo had planned to proffer part of Exhibit 12 at trial. Compare Mot. (Ex. 12) with Am.Ex.List. (Ex. 175).

6. Exhibit 4 included not only papers that Lupo had not submitted before but also parts of Selected Product Reports he had affixed to the Response. Compare Summ.J.Resp. (excerpts of Selected Product Reports labeled DL 01179 and DL 01156) with Mot. (Ex. 4). Lupo had intended to present all of the documents comprising Exhibit 4 as a single trial exhibit.¹¹ Compare Mot. (Ex. 4) with Am.Ex.List (Ex. 35).

7. All portions of Selected Product Reports accompanying the Motion, see Mot. (Exs. 1, 2, 3, 4, 6, 7, 11, 12, 13, 14, 15 and 18) — had been disclosed to Lupo before the summary judgment phase. Compare Pl.'s Mot. to Compel Produc. of Docs. (filed Mar. 3, 1997) (seeking Selected Product Reports for each sales territory in Lupo's sales region for 1991, 1992, 1993 and 1994 and the ranking for each sales territory in Lupo's sales region for 1991, 1992, 1993 and 1994) and Disc. Report (filed Apr. 16, 1997) (summarizing the parties' April 4, 1997, oral report of their resolution of Plaintiff's Motion to Compel Production of Documents) with Def.'s Mot. for Summ. J. and Br. in Supp. Thereof (filed Apr. 11, 1997).

8. Lupo failed to explain why he was submitting some materials for the first time in the Motion. See Mot.

9. Besides presenting nineteen exhibits, the Motion cited evidence in the summary judgment record to which Lupo had previously never pointed.¹² Compare Mot. at 5, 10, 11 (citing Bartek Dep. at 19, 23-25, 85, 92, 94-96) with Summ.J.Resp. at 4-5, 10 (citing Oral Dep. of William Bartek at 35-36, 61-62, 108-12, 137 [hereinafter Bartek Dep.]) and Rejoinder (citing Bartek Dep. at 36, 61-62, 108-12, 137). Compare Mot. at 3 (citing Exs. 1 and 2) with Resp. (nowhere pointing to excerpts of Selected Product Reports labeled DL 01173 and DL 01152) and Rejoinder (same). Compare Mot. at 4 (citing Ex. 4) with Resp. (nowhere pointing to excerpts of Selected Product Reports labeled DL 01179 and DL 01156). Compare Mot. at 5 (citing Ex. 7) with Resp. (nowhere pointing to a Selected Product Report excerpt labeled DL 01163) and Rejoinder (same). Lupo provided no reason for why he had not pointed to these items before. See Mot.

Reconsideration

10. A court possesses "considerable discretion in deciding whether to reopen a case in response to a motion for reconsideration arising under" Rule 59(e). Lavespere, 910 F.2d at 174. Motions for reconsideration "serve the narrow purpose of allowing a party `to correct manifest errors of law or fact or to present newly discovered evidence.'" Waltman v. International Paper Co., 875 F.2d 468, 473 (5th Cir.1989); see Williams v. Mississippi Action for Progress, Inc., 824 F.Supp. 621, 623-24 (S.D.Miss.1993). They, therefore, "should not be used to raise arguments that could, and should, have been made before the entry of judgment ... [or] to re-urge matters that have already been advanced by a party." In re Liljenerg Enter., Civ.A. No. 97-0456, 1997 WL 222497, at *2, *3 (E.D.La. May 1, 1997); see State v. Sprint Comm. Co., 899 F.Supp. 282, 284 (M.D.La.1995) ("[L]itigants are expected to present their strongest case when the matter is first considered. A motion to reconsider based on recycled arguments only serves to waste the resources of the court."); Resolution Trust Corp. v. Holmes, 846 F.Supp. 1310, 1316 (S.D.Tex.1994) (motion to reconsider is not "the proper vehicle for rehashing old arguments or advancing legal theories that could have been presented earlier"). When a party moving for reconsideration offers new evidence, a court must address the following, dual concerns: "the need to bring litigation to an end and the need to render just decisions on the basis of all the facts." Lavespere, 910 F.2d at 174.

[T]o strike the proper balance between these competing interests ... [it] should consider, among other things, the reasons for the moving party's default, the importance of the omitted evidence to the moving party's case, whether the evidence was available to the [moving party] ... before [he or] she responded to the ... motion [that he or she seeks to have reconsidered], and the likelihood that the nonmoving party will suffer unfair prejudice if the case is reopened. Id.; accord Snavely v. Nordskog Elec. Vehicles "Marketeer", 947 F.Supp. 999, 1011 (S.D.Miss.1995). See generally Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972) ("A party opposing a motion for summary judgment simply cannot make a secret of his [or her] evidence until the trial, for in doing so he [or she] risks the possibility that there will be no trial. A summary judgment motion is intended to `smoke out' the facts so that the judge can decide if anything remains to be tried.").

Discussion

Lupo's New Evidence

11. Wyeth and American maintain that the court should ignore the new evidence attached to the Motion because Lupo "did not submit [this] ... evidence in opposition to [the] ... motion for summary judgment at the time the Court considered the motion [and because] ... [he] has not established that the Court should consider the new evidence now."¹³ Resp. at 1; see also Resp. at 4.

12. The balance of relevant criteria tips in favor of the position taken by Wyeth and American. First, Lupo gives no explanation for why he failed to include evidence he offers for the first time in the Motion in either the Response or Rejoinder. Second, he had access to the documentary materials and had knowledge of all matters discussed in the June 5 affidavit when he prepared the Response. Third, consideration of the additional items, some of which were never identified as trial exhibits, would unfairly prejudice Wyeth and American. Fourth, in contrast to the typical opponent of a summary judgment motion, Lupo received two opportunities to submit evidence. Finally, the new proof fails to provide Lupo with enough evidence to raise a genuine issue as to whether or not the RIF was a pretext for unlawful age discrimination. For example, to bolster his charge that changes to sales data by Wyeth exposes the RIF as a pretext, Lupo provides the sales records of eight more people for various products, which increases the total number of sales history comparisons offered by him from 2 to 10. Compare Mem.Op. ¶ 37 with Mot. at 12-13 (discussing Exs. 11-15). This additional showing, however, is insufficient to remedy the particular evidentiary problem associated with his contention regarding Wyeth's sales figures to which it goes. See, e.g., Kuhn v. Ball State Univ., 78 F.3d 330, 332 (7th Cir.1996); cf. Hayden v. La-Z-Boy Chair Co., 838 F.Supp. 384, 390-91, aff'd, 9 F.3d 617 (7th Cir.1993), cert. denied, 511 U.S. 1004, 114 S.Ct. 1371, 128 L.Ed.2d 47 (1994). See generally Walther...