UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

JULIO CESAR OVALLE,

Plaintiff,

v. Case No. SA-20-CV-0676-JKP

UNITED STATES OF AMERICA, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

The Court has under consideration Plaintiff’s Motion to Reinstate (ECF No. 10). Pursuant 

to Fed. R. Civ. P. 60(b)(1), Plaintiff seeks to vacate the judgment in this case and reinstate the case 

to the Court’s docket. The Court dismissed the case without prejudice after Plaintiff failed to 

properly respond to a Show Cause Order (ECF No. 4) issued by the assigned Magistrate Judge and 

completely failed to respond to a Report and Recommendation (“R&R”) (ECF No. 6) issued by 

the same Magistrate Judge based upon the lack of proper response to the Show Cause Order. After 

two months without any response to the R&R or other action in the case, the Court accepted the 

R&R and dismissed this case. See Order Accepting R&R (ECF No. 8). Ten days later, Plaintiff

moved to reopen the case.

Because Plaintiff filed his motion within twenty-eight days of the judgment, Rule 59(e), 

rather than Rule 60(b)(1), governs the motion. Through Fed. R. Civ. P. 59(e), litigants may move 

“to alter or amend a judgment,” so long as they do so within twenty-eight days of the entry of 

judgment. Banister v. Davis, 140 S. Ct. 1698, 1703 (2020). Rule 59(e) provides courts with an 

opportunity to remedy their “own mistakes in the period immediately following” their decisions. 

See id. (quoting White v. N.H. Dep’t of Emp. Sec., 455 U.S. 445, 450 (1982)). Given “that corrective function,” courts generally use the rule “only to reconsider matters properly encompassed in 

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a decision on the merits.” Id. (internal quotation marks and brackets omitted). While “courts may 

consider new arguments based on an ‘intervening change in controlling law’ and ‘newly discovered or previously unavailable evidence,’” they “will not address new arguments or evidence that 

the moving party could have raised before the decision issued.” Id. at 450 & n. 2. 

A Rule 59(e) motion “must clearly establish either a manifest error of law or fact or must 

present newly discovered evidence.” T. B. ex rel. Bell v. Nw. Indep. Sch. Dist., 980 F.3d. 1047, 

1051 (5th Cir. Nov. 23, 2020) (quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th 

Cir. 2003). Such a motion is for that “narrow purpose” only and courts “sparingly” use the “extraordinary remedy” to reconsider “a judgment after its entry.” Def. Distributed v. U.S. Dep’t of 

State, 947 F.3d 870, 873 (5th Cir. 2020) (citations omitted). Courts, nevertheless, “have ‘considerable discretion in deciding whether to reopen a case under Rule 59(e).’” Id. (quoting Edward H. 

Bohlin Co. v. The Banning Co., 6 F.3d 350, 355 (5th Cir. 1993)).

Through the instant motion, Plaintiff does not argue any manifest error of law or fact. He 

instead sets out various circumstances to show excusable neglect in the failure to prosecute this 

action. But he makes no attempt to show why he did not object to the R&R. In fact, he misstates 

the facts when he states that “[a]fter a Report and Recommendation was sent by the Court notifying 

Plaintiff of his failure to serve the Defendants, Plaintiff filed a Notice of Service.” He filed the 

notice the day after the Show Cause Order, but filed nothing in response to the R&R. Because the 

Court dismissed this action without prejudice, Plaintiff is free to file a new action. Plaintiff has not 

asserted any bar that would prevent him from commencing a new action on the same allegations. 

Absent a bar like a statute of limitations, the Court discerns no prejudice to Plaintiff by not reopening this case. Accordingly, the Court DENIES Plaintiff’s Motion to Reinstate (ECF No. 10). 

If Plaintiff is facing a viable bar to refiling this case as a new civil action, the Court will consider 

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whether the circumstances justify reopening this case on proper motion by Plaintiff. Of course, if 

any such bar would also apply to this case, such bar would provide no basis to reopen this case.

IT IS SO ORDERED.

SIGNED this 11th day of March 2020.

JASON PULLIAM

UNITED STATES DISTRICT JUDGE

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