UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NEW LEAF SERVICE CONTRACTS,

INC.,

Plaintiff,

VS.

GERHARD’S INC. d/b/a GERHARD’S

APPLIANCES & HOME THEATER,

Defendant.

)

)

)

)

)

) CIVIL ACTION NO.

)

) 3:22-CV-1145-G

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is the plaintiff New Leaf Service Contracts, Inc.’s (the

“plaintiff” or “New Leaf Inc.”) motion to alter or amend the court’s April 13, 2023,

memorandum opinion and order and judgment pursuant to Federal Rule of Civil

Procedure 59(e). See Plaintiff’s Motion to Alter or Amend Judgment (“Motion”)

(docket entry 37). For the reasons stated below, New Leaf Inc.’s motion is DENIED.

I. BACKGROUND

The court set forth the background of this case in a recent memorandum

opinion and order. See Memorandum Opinion and Order of April 13, 2023

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 1 of 8 PageID 734
(“Memorandum Opinion and Order”) (docket entry 35). Below are the facts relevant

to the current motion.

On June 16, 2022, Gerhard’s Inc. d/b/a Gerhard’s Appliances & Home Theater

(the “defendant” or “Gerhard’s”) filed its first motion to dismiss New Leaf Inc.’s

complaint for lack of subject matter jurisdiction, arguing that New Leaf Inc. lacks

standing to bring its lawsuit. Defendant’s Motion to Dismiss Plaintiff’s Complaint

Pursuant to Federal Rule of Civil Procedure 12(b)(1) (docket entry 23) at 1. On July

19, 2022, the court granted what it construed as the defendant’s motion for leave to

conduct limited jurisdictional discovery and denied without prejudice the defendant’s

initial motion to dismiss New Leaf Inc.’s complaint. Order (docket entry 26) at 2-3. 

Subsequently, on October 21, 2022, Gerhard’s filed its second motion to dismiss,

again arguing that New Leaf Inc. lacks standing. Defendant’s Motion to Dismiss

Plaintiff’s Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1) (docket

entry 29) at 3. On April 13, 2023, the court granted Gerhard’s second motion to

dismiss because New Leaf Inc. lacks standing and denied New Leaf Inc.’s request for

leave to amend its complaint. Memorandum Opinion and Order at 1.

On May 10, 2023, New Leaf Inc. filed its motion to alter or amend the court’s

judgment under Federal Rule of Civil Procedure 59(e) and attached exhibits, asking

the court: “(1) to reverse its dismissal and restore New Leaf’s Complaint; (2) absent

reversal of the dismissal, grant New Leaf leave to amend its Original Complaint and

- 2 -

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 2 of 8 PageID 735
file the attached First Amended Complaint (Exhibit A); or (3) alternatively, amend

the judgment to specify that dismissal is without prejudice.” Motion at 1-2

(underline in original); Exhibits A and B, attached to Motion. On May 30, 2023,

Gerhard’s filed its response and attached exhibits. See Answer of Defendants,

Gerhard’s Inc. d/b/a Gerhard’s Appliances & Home Theater, to Plaintiff’s Motion to

Alter or Amend Judgment (“Response”) (docket entry 38); Exhibits A, B, and C,

attached to Response. On June 13, 2023, New Leaf Inc. filed its reply and again

attached exhibits. See Plaintiff’s Reply in Support of its Motion to Alter or Amend

Judgment (“Reply”) (docket entry 39); Exhibits A and B, attached to Reply.

II. ANALYSIS

A. Legal Standard

Federal Rule of Civil Procedure 59(e) applies to “[a] motion to alter or amend

a judgment” and provides that such a motion “must be filed no later than 28 days

after the entry of the judgment.” FED. R. CIV. P. 59(e). “A motion to alter or amend

the judgment under Rule 59(e) must clearly establish either a manifest error of law or

fact or must present newly discovered evidence and cannot be used to raise

arguments which could, and should, have been made before the judgment issued.” 

Schiller v. Physicians Resource Group Inc., 342 F.3d 563, 567 (5th Cir. 2003) (internal

quotation marks omitted). Importantly, “[a] Rule 59(e) motion is not proper to

re-litigate matters that have been resolved to the movant’s dissatisfaction and [the

- 3 -

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 3 of 8 PageID 736
movant] cannot have a ‘second bite at the apple’ on the same issues that were

previously addressed by the parties and this [c]ourt.” Alvarado v. Texas Rangers, No.

EP-03-CA-0305-FM, 2005 WL 1420846, at *2 (W.D. Tex. June 14, 2005), rev’d on

other grounds, 492 F.3d 605 (5th Cir. 2007).

“Reconsideration of a judgment after its entry is an extraordinary remedy that

should be used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.)

(citation omitted), cert. denied, 543 U.S. 976 (2004). “Indeed, the remedy is so

extraordinary that the standard under Rule 59(e) favors denial of motions to alter or

amend a judgment.” Berry v. Indianapolis Life Insurance Company, No.

3:08-CV-0248-B, 2009 WL 1979262, at *1 (N.D. Tex. July 8, 2009) (Boyle, J.)

(internal quotations and citations omitted). “It is within the district court’s

discretion whether to reopen a case under [Federal Rule of Civil Procedure] 59(e).” 

Weber v. Roadway Express, Inc., 199 F.3d 270, 276 (5th Cir. 2000) (citing Edward H.

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

B. Application

New Leaf Inc. has failed to establish a manifest error of law or fact or present

newly discovered evidence. Regarding New Leaf’s Inc’s first and second arguments,

that the court should reverse its dismissal or in the alternative grant it leave to amend

its complaint, New Leaf Inc. fails to demonstrate that there is any manifest error of

law or fact in the court’s memorandum opinion and order or present newly

- 4 -

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 4 of 8 PageID 737
discovered evidence that materially changes the court’s analysis. Instead, New Leaf

Inc. incorrectly uses its motion to “obtain a second bite at the apple” and re-litigate

these arguments that the court has already ruled on to New Leaf Inc.’s

dissatisfaction. See Motion at 3-15; Alvarado, 2005 WL 1420846, at *2.*

Consequently, New Leaf Inc.’s first and second arguments in its motion fail under

Rule 59(e).

In New Leaf Inc.’s third argument, it avers that the court should amend the

judgment to specify that dismissal is without prejudice because the court “lacks the

*

In its motion, New Leaf Inc. asserts that amending its complaint would

not be futile because, as evidenced in its proposed first amended complaint it

attached to its motion, it would like to: (1) add the Delaware entity New Leaf LLC

and the Texas entity New Leaf LLC as plaintiffs to the lawsuit and assert that New

Leaf Inc. is the successor in interest to both those entities, because the Delaware

entity is the successor in interest to the Texas entity and New Leaf Inc. is the

successor in interest to the Delaware entity; and (2) add a new quasi-contract claim

of promissory estoppel in the alternative to its breach of contract claim. Motion at

13-14; Exhibit A at 2-3, 7. New Leaf Inc. amending its complaint in this way,

however, does nothing to cure its lack of standing or to sufficiently state a claim on

which relief can be granted. New Leaf Inc.’s assertion that it is the successor in

interest to the Texas entity and its new promissory estoppel claim leave its proposed

first amended complaint filled with contradictions that are at odds with the evidence

both parties attached in support and response to Gerhard’s second motion to dismiss.

Furthermore, New Leaf Inc. has presented no newly discovered evidence

indicating why it only now knows, as opposed to pre-judgment, that it is the

successor in interest to the Texas entity, or why it only now believes that it has a

valid promissory estoppel claim, rather than pre-judgment. Instead, as Gerhard’s

succinctly describes, New Leaf Inc.’s proposed first amended complaint “appears to

be a superficial attempt to bootstrap New Leaf Inc. into subject matter jurisdiction

based on assertions which could and should have been made (even if incongruous)

prior to judgment.” Response at 12.

- 5 -

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 5 of 8 PageID 738
authority” to dismiss the case with prejudice and “dismissal with prejudice at this

stage would constitute a manifest error amounting to a complete disregard of the

controlling law.” Motion at 15-17 (internal quotation marks omitted). New Leaf

Inc. contends that “dismissal with prejudice is such a severe sanction that it is to be

used only in extreme circumstances[,]” id. at 15 (quoting Boazman v. Economics

Laboratory, Inc., 537 F.2d 210, 212 (5th Cir. 1976)) (internal quotation marks

omitted), and “[u]nlike dismissal for failure to state a claim, dismissal for lack of

subject-matter jurisdiction is usually without prejudice[,]” id. (quoting incorrectly Hill

v. Estate of Hill, 594 F. Supp. 3d 741, 762 n.14 (N.D. Tex.) (Lindsay, J.), appeal

dismissed, No. 22-10408, 2022 WL 15117035 (5th Cir. June 16, 2022)) (internal

quotation marks omitted) (emphasis in original). New Leaf Inc. argues that this is

because dismissal with prejudice is a ruling on the merits, but since dismissal for lack

of subject matter jurisdiction is not a ruling on the merits, it would be improper for

the court to dismiss this case with prejudice. Id. (internal citations and quotation

omitted).

New Leaf Inc. is correct that dismissal for lack of subject matter jurisdiction is

“usually without prejudice.” Usually without prejudice, however, implies that there

are unusual situations where a court can dismiss a case with prejudice for lack of

subject matter jurisdiction. See, e.g., Baton Rouge Building & Construction Trades

Council AFL-CIO v. Jacobs Constructors, Inc., 804 F.2d 879, 881 (5th Cir. 1986) (per

- 6 -

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 6 of 8 PageID 739
curiam) (affirming district court’s dismissal with prejudice for lack of standing);

Westfall v. Miller, 77 F.3d 868, 870-73 (5th Cir. 1996). As Judge Lindsay described:

Although the court lacks subject matter jurisdiction over

Plaintiffs’ claims and dismissals for lack of jurisdiction are

ordinarily without prejudice, and in light of this court’s

ruling, there is no court, state or federal, that has

jurisdiction to hear Plaintiffs’ claims. Plaintiffs cannot

amend to overcome this obstacle . . . Moreover, to dismiss

Plaintiffs’ claims without prejudice would create the

impression that they could file these claims in an

appropriate forum when there is no other appropriate

forum. The better, and more reasonable, course of action,

therefore, is to dismiss these claims with prejudice.

Estate of Hill, 594 F. Supp. 3d at 762.

Similarly, in this case, it appears that there is no way that New Leaf Inc. can

amend its complaint to overcome the fact that it lacks standing. As the court stated

in its April 13, 2023, memorandum opinion and order, “it is strange that New Leaf

Inc. cannot produce one document that affirmatively demonstrates or merely indicates

that [it was its predecessor in interest] that contracted with Gerhard’s – a document

that, were it to exist, would quickly resolve this issue in New Leaf Inc.’s favor.” 

Memorandum Opinion and Order at 19. New Leaf Inc. has now had four

opportunities (and additional jurisdictional discovery) to uncover and provide this

type of evidence to the court, whether in its complaint, response to Gerhard’s first

motion to dismiss, response to Gerhard’s second motion to dismiss, or the current

motion to alter or amend the court’s judgment, but continues to fail to produce it.

- 7 -

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 7 of 8 PageID 740
Dismissing this case without prejudice or granting New Leaf Inc. leave to

amend its complaint would indicate to New Leaf Inc. that it could file this case in

another forum where it would have standing to sue Gerhard’s on its claims or that it

could amend its complaint in a way that would cure any standing deficiencies, when

there is no appropriate forum and any amendment would be futile. New Leaf Inc.’s

repeated -- and continuing -- failure to produce even a scintilla of evidence indicating

that its predecessor in interest contracted with Gerhard’s demonstrates why that is the

case. As such, New Leaf Inc.’s third argument in its motion also fails under Rule

59(e).

III. CONCLUSION

For the reasons stated above, New Leaf Inc.’s motion to alter or amend the

court’s judgment is DENIED.

SO ORDERED.

July 10, 2023.

___________________________________

A. JOE FISH

Senior United States District Judge

- 8 -

Case 3:22-cv-01145-G Document 40 Filed 07/10/23 Page 8 of 8 PageID 741