Warren v. Blockbuster Music ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-30532
Summary Calendar
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LISA WARREN,
Plaintiff-Appellant,
VERSUS
BLOCKBUSTER MUSIC, a division of Blockbuster
Entertainment Group/Corporation,
Defendant-Appellee.
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Appeal from the United States District Court
For the Eastern District of Louisiana
(96-CV-1018-C)
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December 3, 1997
Before KING, DAVIS, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Lisa Warren appeals the district court’s denial of her motion
to amend the judgment entered against her under Rule 59(e) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
we affirm.
Warren brought this lawsuit against her former employer,
Blockbuster Music (“Blockbuster”), alleging employment
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
discrimination and intentional infliction of emotional distress.
Warren, an African-American female, claimed that her supervisor,
Sidney Babin, had fired her because of her race and gender. On
February 6, 1997, the district court granted summary judgment on
Warren’s employment discrimination claim in favor of Blockbuster.
On February 21, 1997, the court granted summary judgment on
Warren’s intentional infliction of emotional distress claim in
favor of Blockbuster. On February 24, 1997, the court entered an
order dismissing Warren’s complaint.
On March 6, 1997, Warren filed a motion for a new trial based
on the discovery of new evidence, which the district court
entertained as a motion to amend a judgment under Rule 59(e). On
February 18, 1997, Warren had deposed Ray Genovese, one of
Blockbuster’s regional managers. Genovese testified that Babin had
been terminated on or about February 14, 1997, and that Genovese’s
supervisor, Kurt Steltenpohl, told him that Babin had been fired
because of his poor treatment of black customers. Warren claimed
that this evidence was probative of whether Babin had discriminated
against her on the basis of race and thus warranted a trial on the
merits of her case.
In Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d
167, 173 (5th Cir. 1990), we outlined certain factors to be
considered in deciding whether to grant a Rule 59(e) motion in a
case like this one: 1) the reasons for the moving party’s default;
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2) the importance of the omitted evidence to the moving party’s
case; 3) whether the evidence was available to the moving party
before she responded to the motion for summary judgment; and 4) the
likelihood that the non-moving party will suffer prejudice if the
case is reopened. After considering each of these factors, the
district court denied Warren’s motion.
On appeal, Warren contends that the district court failed to
give proper consideration to the first three factors outlined in
Lavespere. We review a district court’s denial of a Rule 59(e)
motion for abuse of discretion, Seneca v. Phillips Petroleum Co.,
963 F.2d 762, 766 (5th Cir. 1992), and conclude that the court did
not abuse its discretion here.
With respect to the first and third Lavespere factors, the
evidence concerning Babin’s termination was available to Warren
prior to the dismissal of her case. Warren learned of Babin’s
termination on February 18, 1997, two days before she filed a
response to Blockbuster’s renewed motion for summary judgment on
her intentional infliction of emotional distress claim, and six
days before the district court dismissed her complaint. Thus, she
failed to exercise reasonable diligence in bringing the evidence
before the court.
With respect to the second Lavespere factor, the evidence on
which Warren relies is inadmissible hearsay. Although Warren seeks
to characterize Steltenpohl’s statement as a party admission, she
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has proffered no evidence that Steltenpohl was involved in the
decision to terminate Babin. Accordingly, Steltenpohl’s statement
cannot be considered a party admission. See Hill v. Spiegel, Inc.,
708 F.2d 233, 237 (6th Cir. 1983) (holding that statements by
managerial employees concerning reasons for plaintiff’s discharge
were not party admissions where there was no evidence that
declarants were involved in the decision to terminate plaintiff).
AFFIRMED.
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