IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION

 

NELSON WILLIS

v. 

ADAM M. ARON

§

§

§

§

§

 NO. 4:23-CV-00732-ALM-BD

REPORT AND RECOMMENDATION 

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Nelson Willis filed a motion asking the court to take judicial notice of certain alleged 

misconduct by defendant Adam Aron, Dkt. 104, and a motion for reconsideration of the court’s 

dismissal of Willis’s claims, Dkt. 105. The motions were referred to me in accordance with 28 

U.S.C. § 636. Dkt. 112. The motion for judicial notice should be dismissed and the motion for 

reconsideration denied.

BACKGROUND

Willis sued Aron, the CEO and President of AMC Entertainment Holdings, Inc., for malicious 

prosecution, abuse of process, and intentional infliction of emotional distress. Dkt. 1 at 26–28. At 

this stage of proceedings, the facts alleged in the complaint must be taken as true. Heinze v. Tesco 

Corp., 971 F.3d 475, 479 (5th Cir. 2020).

According to the complaint, while Willis was in the hospital, AMC held a special meeting for 

shareholders to vote on whether to increase the number of authorized shares of common stock and 

to convert a class of preferred stock into common stock. Dkt. 1 at 11–12. Although Willis owned

both preferred and common shares, he received proxy-voting statements only for his preferred 

shares, preventing him from voting on all of his shares from the hospital. Id. at 16–17. When he 

learned that the proposed changes were approved without all of his votes, he sent angry emails to 

Aron, prompting Aron to petition a state court for a protective order against him. Id. at 18–19. In 

connection with the state-court matter, Willis served John Merriwether, AMC’s Vice President of 

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Investor Relations, with subpoenas to testify and to produce documents. Id. at 21. Hours later, 

Aron filed a nonsuit. Id. at 22.

Willis responded by filing this federal lawsuit alleging that Aron’s state-court action amounted 

to malicious prosecution, abuse of process, and intentional infliction of emotional distress. Aron 

moved to dismiss the complaint. Dkt. 10. Willis filed a motion for summary judgment “based on 

the procedural misconduct, fraudulent activities, and strategic misrepresentations perpetrated by 

[Aron] and his attorneys.” Dkt. 80 at 1.

Magistrate Judge Kimberly C. Priest Johnson issued a report and recommendation that Aron’s 

motion to dismiss be granted and Willis’s claims dismissed with prejudice. Dkt. 88. Willis filed 

timely objections. Dkt. 94. District Judge Amos L. Mazzant conducted a de novo review of those 

objections, overruled them, and adopted Judge Johnson’s report and recommendation. Dkt. 103.

Less than a half-hour after the court’s order was docketed, Willis filed a motion for judicial 

notice asking the court to consider certain information in support of his motion for summary 

judgment, Dkt. 104, even though the court never reached the motion because it had already 

dismissed his claims. A few days later, Willis filed a motion for reconsideration of the 

memorandum adopting the report and recommendation. Dkt. 105. He filed a notice of appeal the 

next week. Dkt. 110 (original); Dkt. 111 (amended).

JURISDICTION

A “perfected appeal divests the district court of jurisdiction.” Shepherd v. Int’l Paper Co., 372 

F.3d 326, 329 (5th Cir. 2004). Because Willis has perfected an appeal, see Dkt. 111; Docket, Willis 

v. Aaron, No. 24-40585 (5th Cir.), the court may not consider his motion for judicial notice.

For the same reason, the court would lack jurisdiction to grant Willis’s motion for 

reconsideration without first obtaining leave from the court of appeals. Shepherd, 372 F.3d at 329.

The court may, however, deny the motion for reconsideration without leave of the higher court.

Id. (discussing a Rule 60(b)(6) motion); see Perkins v. Livingston, No. 9:12-CV-00121, 2012 WL 

13184344, at *2 (E.D. Tex. Oct. 1, 2012) (applying the same reasoning to a Rule 59(e) motion).

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STANDARD FOR RECONSIDERATION

“While the Federal Rules of Civil Procedure do not provide for a motion for reconsideration, 

such a motion may be considered either a Rule 59(e) motion to alter or amend judgment or a Rule 

60(b) motion for relief from judgment or order.” Shepherd, 372 F.3d at 328 n.1. “If a motion for 

reconsideration is filed within 28 days of the judgment or order of which the party complains, it is 

considered to be a Rule 59(e) motion; otherwise, it is treated as a Rule 60(b) motion.” Milazzo v. 

Young, No. 6:11-CV-00350, 2012 WL 1867099, at *1 (E.D. Tex. May 21, 2012). Because Willis filed 

his motion for reconsideration within 28 days of the court’s memorandum adopting the report and 

recommendation, it is considered a Rule 59(e) motion.

Rule 59(e) serves “the narrow purpose of allowing a party to correct manifest errors of law or 

fact or to present newly discovered evidence.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th 

Cir. 2004). A “[m]anifest error is one that is plain and indisputable, and that amounts to a complete 

disregard of the controlling law.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) 

(quotation marks omitted). “Relief under Rule 59(e) is also appropriate when there has been an 

intervening change in the controlling law.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 

(5th Cir. 2003). “Reconsideration of a judgment after its entry is an extraordinary remedy that 

should be used sparingly.” Templet, 367 F.3d at 479.

DISCUSSION

Willis’s motion for reconsideration does not present newly discovered evidence or identify an 

intervening change in the controlling law. Rather, it argues only for error-correction—but fails to 

identify any error.

I. The Nonsuit in State Court

Willis first asserts that Aron’s nonsuit of the state-court case was never finalized, so his claim 

for malicious prosecution should not have been dismissed. Willis has already made and lost that

argument twice. He is not entitled to a third try.

In both his response to Aron’s motion to dismiss and his objections to the memorandum 

adopting the report and recommendation, Willis argued that Aron’sfiling of the nonsuit just hours 

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after Merriwether was served with the subpoenas demonstrated that Aron filed the nonsuit to 

avoid discovery and, ultimately, an unfavorable ruling on the merits. Dkt. 32 at 10–12; Dkt. 94 at 

2–3. Relying on Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011), Willis argued that Aron’s attempt to 

avoid an unfavorable ruling made his nonsuit ineffective. Id.

A Rule 59(e) motion “is not ‘the proper vehicle for rehashing old arguments.’” Iovate Health 

Scis., Inc. v. Bio-Engineered Supplements & Nutrition, Inc., No. 9:07-CV-00046, 2008 WL 11345895, 

at *1 (E.D. Tex. Aug. 18, 2008) (quoting Resol. Tr. Corp. v. Holmes, 846 F. Supp. 1310, 1316 (S.D. 

Tex. 1994)). Accordingly, Willis’s rehashed arguments about the status of the nonsuit are not a 

proper basis for Rule 59(e) relief.

But even if Willis could properly re-raise those issues, the result would not change. The court 

did not err in dismissing his claim for malicious prosecution based on the status of the nonsuit.

A complaint will survive a motion to dismiss if it alleges “enough facts to state a claim to relief 

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In ruling on a 

motion to dismiss, the court must first identify and exclude legal conclusions in the complaint that 

“are not entitled to the assumption of truth,” then consider the remaining “well-pleaded factual 

allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court must accept as true all wellpleaded facts and view them in the light most favorable to the plaintiff. Heinze, 971 F.3d at 479. 

Here, Willis failed to state a claim for malicious prosecution because he did not plead sufficient 

facts for the court to find that the state-court suit terminated in his favor, one of six essential 

elements of a malicious-prosecution claim. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 

1996).

Willis stated in his complaint that “Aron nonsuited all of the claims asserted against [him]” 

and that the “proceeding was terminated in . . . Willis’[s] favor.” Dkt. 1 at 22, 26. Although the 

court had to take as true all of the complaint’s well-pleaded facts, including the fact that Aron filed 

a nonsuit, it was not required to embrace Willis’s legal conclusion that the proceeding terminated 

in his favor. Because “[t]he taking of a voluntary non-suit does not constitute a litigation of the 

issues in a case,” the court instead found that the nonsuit was a neutral termination. Dkt. 88 at 5–

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6 (citing KT Bolt Mfg. Co. v. Tex. Elec. Coops., Inc., 837 S.W.2d 273, 275 (Tex. App.—Beaumont 

1992, writ denied)).

Willis now argues that the court erred in reaching that conclusion because the nonsuit was 

never finalized, leaving the state-court case “active and unresolved.” Dkt. 105 at 2. But if that were 

true, it would not help Willis. If the state-court case remains unresolved, it necessarily could not 

have terminated, much less terminated in Willis’s favor. See Tex. Beef Cattle Co., 921 S.W.2d at 

207.

True, the state-court case could have terminated in Willis’sfavor if the proceedings had played 

out differently. As the Texas Supreme Court explained in Epps, “a defendant may be a prevailing 

party when a plaintiff nonsuits without prejudice if the trial court determines, on the defendant’s 

motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits.” 351 S.W.3d at 

870. But Willis did not allege that he asked the state court to determine whether the nonsuit was 

taken to avoid an unfavorable merits ruling or that the court made that determination. Rather, 

Willis alleged only that Aron nonsuited the claims and that the case was terminated. Because he

did not state facts in the complaint that could plausibly show otherwise, the court did not err in 

concluding that the nonsuit was finalized and the state-court case terminated neutrally.

Relatedly, Willis asserts that this court should have: (1) weighed Aron’s alleged attempt to

evade discovery against him; (2) invalidated Aron’s subsequent filings, including his motion to 

dismiss; and (3) sanctioned Aron’s counsel. None of those assertions has merit. For the reasons 

already explained, the court did not err in finding the nonsuit finalized, so Willis’s arguments

related to that conclusion fail. And neither Aron nor his counsel committed any misstep by filing 

the nonsuit. Aron had a right to make that procedural move at any time before introducing all of 

his evidence. See Tex. R. Civ. P. 162.

Finally, Willis asserts that Aron’s counsel knowingly misrepresented the status of the statecourt case to this court and that he also submitted a forged affidavit, an assertion for which Willis

provides no context. He argues that the court should have considered such “fraudulent activities” 

when ruling on histwo remaining claims for abuse of process and intentional infliction of emotional 

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distress. But Willis did not allege any facts about those activities in his complaint, so the court 

could not have properly considered them when ruling on the motion to dismiss. Lone Star Fund V 

(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (explaining that, under Rule 

12(b)(6), “[t]he court’s review is limited to the complaint, any documents attached to the 

complaint, and any documents attached to the motion to dismiss that are central to the claim and 

referenced by the complaint”). If Willis wanted those facts to be considered, he could have added 

them by amending his complaint. See Fed. R. Civ. P. 15(a); Bernhard v. Whitney Nat’l Bank, 523 

F.3d 546, 551 (5th Cir. 2008) (explaining that “a plaintiff is master of his complaint”). He was 

given several extensions to allow him to amend his complaint, see Dkts. 17, 20, 23, 25, 26, 30, but 

he never did. 

II. Discovery

Willis next asserts that the court unjustly deprived him of access to evidence needed to 

substantiate his claims by dismissing his case before he could subpoena nine “key social media 

influencers who possess relevant insider information.” Dkt. 105 at 2. But Willis previously

objected to the court’s dismissal of his case before he was able to conduct discovery, and that 

objection was overruled. Dkts. 94 at 3–4, 103 at 1. He cannot properly rehash that argument as 

grounds for reconsideration. See Iovate Health Scis., Inc., 2008 WL 11345895, at *1.

In any event, the argument would fail. Willis confuses the standard for a motion to dismiss with 

the standard for a motion for summary judgment. As already noted, when ruling on a motion to 

dismiss, the court assumes the truth of the well-pleaded facts and does not consider evidence. 

Heinze, 971 F.3d at 479; Lone Star Fund, 594 F.3d at 387. At the summary-judgment stage, 

however, the court may, and often does, consider evidence. See Fed. R. Civ. P. 56(c). If a complaint 

does not survive a motion to dismiss, the court never reaches the motion for summary judgment

and therefore has no occasion to consider evidence. That makes good sense, as a case may proceed

to the summary-judgment stage only if the plaintiff states a plausible claim. See Twombly, 550 U.S. 

at 558–59 (2007). Willis failed to do that, so he was not required to substantiate his claims with 

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evidence. The court therefore did not err in dismissing Willis’s claims before he conducted 

discovery.

In the same vein, Willis faults the court for not acting on his motion for summary judgment, 

demanding that the motion be granted. He also states his intent to file an amended complaint and 

bring a separate lawsuit against Aron’s attorneys and their law firm. Those assertions do not 

support a request to alter or amend the challenged judgment, so they fall outside the scope of a 

Rule 59(e) motion. Also, Willis already unsuccessfully objected to the court’s failure to rule on his 

motion for summary judgment. See Dkts. 94 at 4, 103 at 1. Again, because a Rule 59(e) motion is 

not the proper vehicle for rehashing arguments that have already failed, Willis’s argument is 

unavailing. See Iovate Health Scis., Inc., 2008 WL 11345895, at *1.

III. Consideration for a Pro Se Litigant

Willis finally states that the court treated him with an “unjust and unacceptable” disregard by 

failing “to extend the necessary considerations to a pro se litigant,” adding that the court failed to 

treat “any of [his] statements or evidence as true.” Dkt. 105 at 3, 4. Those are false charges.

A pro se complaint must be “liberally construed” and “held to less stringent standards than 

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). “However, 

regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory 

allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a 

motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation 

marks omitted). Because Willis failed to allege facts that could support a conclusion that the statecourt case terminated in his favor, see supra Part I, the court did not err by granting Aron’s motion 

to dismiss. See Landry v. Townsend, No. 6:23-CV-00057, 2023 WL 9380391, at *5 (E.D. Tex. Dec. 

18, 2023) (dismissing several claims by a pro se plaintiff who failed to allege facts showing that he 

was entitled to relief), report and recommendation adopted, No. 6:23-CV-00057, 2024 WL 264674 

(E.D. Tex. Jan. 24, 2024); Peel v. Cnty. Att’y Mark Cobern, No. 5:22-CV-00032, 2022 WL 

18396272, at *7–9 (E.D. Tex. Aug. 15, 2022) (dismissing claims when a pro se plaintiff did not plead 

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facts that could support an action against the defendant), report and recommendation adopted, 

No. 5:22-CV-00032, 2022 WL 17831397 (E.D. Tex. Dec. 21, 2022), appeal dismissed, No. 23-

40046, 2023 WL 9380824 (5th Cir. Feb. 16, 2023); Taylor, 296 F.3d at 380 (affirming dismissal of 

a complaint when the pro se plaintiff failed to state a fact necessary to prove his claim).

RECOMMENDATION

It is RECOMMENDED that: (1) the motion for judicial notice, Dkt. 104, be DISMISSED for 

lack of jurisdiction; and (2) the motion for reconsideration, Dkt. 105, be DENIED. 

* * *

Within 14 days after service of this report, any party may serve and file written objections to 

the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).

A party is entitled to a de novo review by the district judge of the findings and conclusions 

contained in this report only if specific objections are made. Id. § 636(b)(1). Failure to timely file 

written objections to any proposed findings, conclusions, and recommendations contained in this 

report will bar an aggrieved party from appellate review of those factual findings and legal 

conclusions accepted by the district judge, except on grounds of plain error, provided that the party 

has been served with notice that such consequences will result from a failure to object. Id.; Thomas 

v. Arn, 474 U.S. 140, 155 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 

1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to 

file objections from 10 to 14 days).

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