Munoz v. United States
| Docket Number | C. A. 6:20-CV-00919-ADA-JCM |
| Decision Date | 19 July 2022 |
| Parties | EDWIN MUNOZ, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Western District of Texas |
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are Plaintiffs' Opposed Motion for Reconsideration of the Order Dismissing the Complaint and in the Alternative to Grant Leave to File First Amended Complaint (ECF No. 12) Defendant's Response to Motion to Reconsider or, in the Alternative, to Amend (ECF No. 13), Plaintiffs' Reply in Support of their Motion (ECF No. 14), and Defendant's Sur-Reply (ECF No. 16). For the following reasons, the Court RECOMMENDS Plaintiffs' Motion be DENIED.
Temple Lake Park is operated and maintained by the United States Army Corps of Engineers (the “Corps”). Pl.'s Compl. at 2, ECF No. 1. On September 28, 2018, Plaintiff Edwin Munoz dove head-first into Belton Lake off a dock at Arrowhead Point within Temple Lake Park. Id. at 4. Edwin's dive resulted in a spinal cord injury, which he still suffers from today. Id. Edwin's mother, Plaintiff Rosa Munoz, cares for Edwin full-time due to his injury. Id.
On October 5, 2020, Plaintiffs sued Defendant United States of America under the Federal Tort Claims Act (“FTCA”). Id. at 1. Plaintiffs alleged employees of the Corps failed to adequately warn Edwin of the dangers of swimming and diving near the boat dock. Id. at 4-6. Specifically, Plaintiffs alleged the Corps' failure to maintain a faded and illegible warning sign at Arrowhead Point amounted to a failure to warn. Id. at 3-4.
This Court granted Defendant's Motion to Dismiss for Lack of Jurisdiction on July 2, 2021 and dismissed Plaintiffs' claim. The Court found the claim fell under the discretionary function exception of the FTCA and therefore deprived the Court of subject matter jurisdiction. Order Granting Mot. Dismiss at 5, ECF No. 11. Plaintiffs now move for the Court to reconsider the dismissal, or in the alternative, grant Plaintiffs leave to file an amended complaint. Pls.' Mot. at 1-2.
“The Federal Rules do not recognize a ‘motion for reconsideration' in haec verba.” Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069, 1075, n.14 (5th Cir. 1994) (en banc). The Fifth Circuit, however, has held that motions for reconsideration must be treated as motions under Rule 59(e) if filed within ten days after entry of judgment or as motions under Rule 60(b) if filed more than ten days after entry of judgment. Id. On the other hand, “Rule 54(b) allows parties to seek reconsideration of interlocutory orders and authorizes the district court to ‘revise[ ] at any time' ‘any order or other decision ... [that] does not end the action.'” Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017) (quoting Fed.R.Civ.P. 54(b)).
Leave to amend a complaint should be freely given by the court when “justice so requires.” Fed.R.Civ.P. 15(a). “[I]t is within the district court's discretion to deny a motion to amend if it is futile.” Avdeef v. Royal Bank of Scot., P.L.C., 616 Fed.Appx. 665, 676 (5th Cir. 2015) (internal citations omitted). A motion for leave to amend is futile if the amended complaint would not survive a motion to dismiss. Id.
Initially, the Court notes that while Plaintiffs cite Rule 54(b) as grounds for their Motion, Rule 54(b) is not the proper vehicle for reconsideration of the Court's Order dismissing the case. Dismissal for lack of subject matter jurisdiction is an order that “end[s] the action.” See Fed.R.Civ.P. 54(b). Plaintiffs filed their Motion more than ten days after the Court dismissed the action, so the Court must view the Motion as one under Rule 60(b). Lavespere, 910 F.2d at 173; see also Carolina Cas. Ins. Co. v. James Sowell Co., L.P., No. 3:07-CV-0584-G, 2007 WL 3129467, at *2 (N.D. Tex. Oct. 25, 2007).
Under Rule 60(b), a court may relieve a party from a final order for the following reasons:
Fed. R. Civ. P. 60(b). Plaintiffs filed the Motion after receiving documents from a Freedom of Information Act (“FOIA”) request that were not released until July 29, 2021-more than ten days after the Court dismissed the case. Pls.' Mot. at 2. Thus, the Court may properly reconsider its Order under Rule 60(b)(2).
First, Plaintiffs argue that the Court should reconsider its dismissal because Plaintiffs' claim follows the “government-created danger” theory discussed in Wysinger v. U.S., which does not require Plaintiffs to point to a rule or regulation to rebut the first prong of the discretionary function exception. Pls.' Mot. at 9-10. Plaintiffs argue that, by placing the warning sign at the boat dock and then failing to maintain it, Defendant created a danger to Edwin. Id. Defendant responds that this theory is foreclosed by the Fifth Circuit's decision in Hix v. U.S. Army Corps of Engineers. Def.'s Resp. at 1-2.
A motion for reconsideration is not “the proper vehicle for rehashing old arguments or advancing theories of the case that could have been presented earlier.” Resolution Trust Corp. v. Holmes, 846 F.Supp. 1310, 1316 (S.D. Tex. 1994). “A motion for reconsideration based on recycled arguments serves only to waste the court's resources.” Carolina Ca. Ins. Co., 2007 WL 3129467, at *2 (citing Texas Instruments, Inc. v. Hyundai Electronics Industries, Co. Ltd., 50 F.Supp.2d 619, 621 (E.D. Tex. 1999)).
The Court will not engage in a detailed analysis of Wysinger or Hix, as Plaintiffs' Wysinger argument was already advanced in their response to the prior motion to dismiss. See Pls.' Resp. at 3-5, ECF No. 9. Further, the Court accepted and relied on Defendant's Hix argument in granting the prior motion to dismiss. Order Granting Mot. Dismiss at 4-5.
Therefore, the Court recommends Plaintiffs' Motion be denied as to Plaintiffs' Wysinger argument.
Alternatively, Plaintiffs move for leave to file an amended complaint under Rule 15. Pls.' Mot. at 10-12. Plaintiffs argue that documents produced from their FOIA request provide the necessary regulations to show Defendant cannot claim the discretionary function exemption. Id. at 11. Plaintiffs also argue that due to the delayed response to their FOIA request, they have not acted in bad faith or with dilatory purpose. Id. Defendant argues amendment is futile because (1) Plaintiffs rely on documents post-dating the accident, (2) the applicable plan describes sign maintenance as a discretionary function, and (3) Plaintiffs' proposed amendment fails to state a claim under Rule 12(b)(6). Def.'s Resp. at 3-4; Def.'s Sur-Reply at 1-3.
“It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” U.S. v. Mitchell, 463 U.S. 206, 212 (1983). The FTCA waives sovereign immunity and allows individuals to sue the federal government for negligence of its employee “while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
An exception to the waiver of sovereign immunity is the discretionary function exception, applicable to:
[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a). “The exception covers only acts that are discretionary in nature, acts that ‘involv[e] an element of judgment or choice,' and ‘it is the nature of the conduct, rather than the status of the actor' that governs whether the exception applies.” U.S. v. Gaubert, 499 U.S. 315, 322 (1991) ().
Courts use a two-prong test to determine whether the exception applies: “(1) ‘the conduct must be a ‘matter of choice for the acting employee[;]'' and (2) the ‘judgment [must be] of the kind that the discretionary function exception was...
To continue reading
Request your trial