United States District Court, M.D. Tennessee, Nashville Division
STATE OF TENNESSEE ex rel. HERBERT H. SLATERY III, in his official capacity as the Attorney General and Reporter of Tennessee and ROBERT J. MARTINEAU, JR., Commissioner of the Tennessee Department of Environment and Conservation, Plaintiffs, and TENNESSEE CLEAN WATER NETWORK and TENNESSEE SCENIC RIVERS ASSOCIATION, Plaintiff-Intervenors,
TENNESSEE VALLEY AUTHORITY, Defendant.
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on the “emergency
motion” of the Tennessee Valley Authority
(“TVA”) to stay execution of the Court's
remand Order or, in the alternative, to alter or amend the
remand Order under Federal Rule of Civil Procedure 59(e).
(Doc. No. 29.) Plaintiffs (collectively, the
“State”) have filed an opposition (Doc. No. 36)
that Plaintiff-Intervenors (“Citizens Groups”)
have joined (Doc. No. 37). The Court will deny the motion.
14, 2018, the Court entered a Memorandum Opinion granting the
State's and Citizens Groups' motions to
remand. (Doc. Nos. 27, 28.) The Court concluded:
The initial complaint fairly apprised the TVA of the nature
of this litigation. The TVA consented to have the case tried
in the state courts by not timely seeking removal. To allow
revival of the right to remove based on the amended complaint
would undercut the 30-day limitation period without serving
the policy behind the revival exception, if that exception is
viable as a matter of law, because the changes that have
occurred have not sufficiently altered this litigation.
Accordingly, remand is proper.
(Id. at 22-23.)
next day, TVA filed an “emergency motion” to stay
or, in the alternative, alter or amend. (Doc. No. 29.) After
setting an expedited briefing schedule, the Court ordered the
Clerk of Court to refrain from executing the remand until a
response was filed and the Court ruled. (See
Doc. Nos. 31, 32, 32-1, 33, 33-1, 34.) Shortly after briefing
was completed on this motion, TVA filed a Notice of Appeal of
the Court's remand Memorandum Opinion and Order. (Doc.
motion sought an order “confirming that execution of
the remand Order is automatically stayed for fourteen
days” because it is subject to Federal Rule of Civil
Procedure 62(a). (Doc. No. 30 at 1.) In its response, the
State does not contest that the remand order is covered by
Rule 62(a). (Doc. No. 36 at 2.) The Court agrees that the
remand order is appealable and was subject to the 14-day
automatic stay provision of Rule 62(a). TVA appealed the
remand Memorandum Opinion and Order within the 14-day stay
period, and thus now seeks a further stay of execution of the
remand under Rule 62(a) pending that appeal. (Doc. No. 30 at
TVA's Notice of Appeal and Authority of the
filed its Notice of Appeal within the 14-day automatic stay
of execution provided by Rule 62, but before the Court ruled
on the instant motion to stay or, in the alternative, alter
or amend the remand Order pursuant to Rule 59. Under Federal
Rule of Appellate Procedure 4(a), when a party files a notice
of appeal after the district court enters a judgment but
before it disposes of a pending Rule 59 motion, the notice of
appeal becomes effective only when the order disposing of the
Rule 59 motion is entered. Fed. R. App. P. 4(a)(4)(B)(i).
Stated differently, “the concept of
‘effectiveness' . . . delay[s] the transfer of
jurisdiction to the appellate court from an otherwise timely
filed notice of appeal until the relevant post-judgment
motion is decided.” Wikol ex rel. Wikol v.
Birmingham Pub. Sch. Bd. of Educ., 360 F.3d 604, 609
(6th Cir. 2004); see also Patterson v. Anderson, 586
Fed.Appx. 657, 662 (6th Cir. 2014) ((“[T]he timely
filing of a motion listed in Rule 4(a)(4)(A) . . . has been
held to suspend or render dormant a notice of
appeal.”). Accordingly, this Court has jurisdiction
to decide both the Rule 59 Motion and request for a stay
Request to Alter or Amend Under Rule 59
Rule 59, a court may alter or amend a judgment based on: (1)
a clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to
prevent manifest injustice. Leisure Caviar, LLC v. U.S.
Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir.
2010); Roger Miller Music, Inc. v. Sony/ATV Publ'g,
LLC, 477 F.3d 383, 395 (6th Cir. 2007); Intera Corp.
v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005).
However, a motion under Rule 59(e) is not a vehicle for
presenting new legal arguments that could have been raised
before a judgment was issued. Roger Miller Music,
477 F.3d at 395; see also Leisure Caviar, 616 F.3d
at 616 (noting that a movant “cannot use a Rule 59
motion to raise arguments which could, and should, have been
made before judgment issued”). Critically, “[a]
motion under Rule 59(e) is not an opportunity to reargue a
case.” Sault Ste. Marie Tribe of Chippewa Indians
v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Likewise,
a Rule 59(e) motion “should not be utilized to submit
evidence which could have been previously submitted in the
exercise of reasonable diligence.” Kenneth Henes
Special Projects Procurement v. Cont'l Biomass
Indus., 86 F.Supp.2d 721, 726 (E.D. Mich. 2000)
(citation omitted). “The grant or denial of a Rule
59(e) motion is within the informed discretion of the
district court, reversible only for abuse.” Scotts
Co. v. Cent. Garden & Pet Co., 403 F.3d 781, 788
(6th Cir. 2005) (citation and internal quotation marks
omitted), abrogated on other grounds, Allied
Indus. Scrap, Inc. v. OmniSource Corp., 776 F.3d 452
(6th Cir. 2015).
moves for relief from the Court's remand Order only on
the ground of manifest injustice. (Doc. No. 30 at 15-16.)
While the Sixth Circuit has not specifically defined manifest
injustice, it has stated that “the plain meaning of
those words is instructive.” Volunteer Energy
Servs. Inc. v. Option Energy, LLC, 579 Fed.Appx. 319,
330-31 (6th Cir. 2014). Namely, “[m]anifest injustice
is defined as ‘[a]n error in the trial court that is
direct, obvious, and observable, such as a defendant's
guilty plea that is involuntary or that is based on a plea
agreement that the prosecution rescinds.'”
Bradley J. Delp Revocable Trust, 665 Fed.Appx. at
530 (citing Black's Law Dictionary 982 (8th ed. 2004)).
The Court of Appeals has further stated: “Of course, as
the examples suggest, more than a clear error is required;
injustice must also result.” Volunteer Energy
Services, Inc., 579 Fed.Appx. at 331. The manifest
injustice standard presents a party “with a high
hurdle.” Westerfield v. United States, 366
Fed.Appx. 614, 620 (6th Cir. 2010).
manifest injustice argument is fundamentally flawed because
TVA makes no real argument regarding “an error in the
trial court that is direct, obvious, and observable.”
Adverse substantive rulings do not become “obvious
errors” in the trial court simply because a party so
hopes. To any extent TVA expects the Court to “read
into” TVA's Rule 59 motion all of TVA's
arguments concerning likelihood of success on the merits, the
Court has addressed and rejected each argument on the revival
exception. (Doc. No. 27.) TVA also simply and explicitly
reiterates its “irreparable harm” arguments from
the stay portion of this motion, discussed below in Section
D. (See Doc. No. 30 at 15-16.) While it may be
understandable that TVA would like to get a second bite at
the apple regarding these arguments, aiming at Rule 59's
manifest injustice “high hurdle” is not the
appropriate means. TVA offers no persuasive precedent that
equates its irreparable harm legal arguments to manifest
injustice. In sum, by means of its reference to Rule 59, TVA
does no more than impermissibly “reargue its
case” against the remand and for a stay. Sault Ste.
Marie Tribe of Chippewa Indians, 146 F.3d at 374.
TVA's Rule 59 Motion is therefore denied.
Merits of Request for Stay
seeking relief under Rule 59, TVA asks the Court to halt its
remand Order under traditional legal principles governing