United States District Court, E.D. Missouri, Eastern Division
ALAN PRESSWOOD, D.C., P.C., individually and on behalf of all others similarly situated, Plaintiff,
PERNIX THERAPEUTICS HOLDINGS, et al., Defendants.
MEMORANDUM AND ORDER
NANNETTE A. BAKER UNITED STATES MAGISTRATE JUDGE.
closed matter is before the Court on Plaintiff's Motion
to Remand and Motion to Alter or Amend Judgment Pursuant to
Federal Rule of Civil Procedure 59(e). [Docs. 79, 83.]
stated in the Memorandum and Order dismissing this action,
the procedural history of this case is circuitous. For a
detailed procedural history of this action, please refer to
that order. [Doc. 77.] Essentially, Plaintiff filed three
complaints in this action, with the last Complaint being the
Second Amended Complaint filed on April 23, 2015. [Doc. 22.]
The Second Amended Complaint only asserted claims under the
Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”). “It is well established that an
amended complaint [supersedes] an original complaint and
renders the original complaint without legal effect.”
In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067
(8th Cir. 2000). Defendants filed a Motion to Dismiss the
Second Amended Complaint, which was granted by the Court on
November 30, 2016. [Docs. 29, 77.] The Court granted the
motion based on Plaintiff's lack of standing and
therefore, dismissed for lack of subject matter jurisdiction.
Plaintiff then filed a Motion to Remand and Motion to Alter
or Amend Judgment. Both motions have now been fully briefed.
Plaintiff asks the Court to remand this action, which was
originally filed in state court. Plaintiff's motion will
be denied as untimely. The Court cannot remand a case for
lack of subject matter jurisdiction after judgment has been
entered. See 28 U.S.C. § 1447(c).
the Court will address Plaintiff's motion to alter or
amend judgment. “A motion to alter or amend a judgment
must be filed no later than 28 days after entry of the
judgment.” Fed.R.Civ.P. 59(e). “A district court
has broad discretion in determining whether to grant or deny
a motion to alter or amend judgment pursuant to Rule
59(e).” Briscoe v. County of St. Louis, 690
F.3d 1004, 1015 (8th Cir. 2012). “One of the main
purposes of Rule 59(e) is to allow a district court to
‘rectify its own mistakes in the period immediately
following the entry of judgment.'” Burckhard v.
BNSF Railway Co., 837 F.3d 848, 857 (8th Cir. 2016)
(citing Innovative Home Health Care, Inc. v. P.T.-O.T.
Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th
Cir. 1998)). “It should be noted that Rule 59(e)
motions serve the limited function of correcting manifest
errors of law or fact or to present newly discovered
evidence.” United States v. Metropolitan St. Louis
Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006).
instant motion to amend or vacate judgment, Plaintiff
requests that the Court amend its judgment in this action by
remanding the case instead of dismissing the case. In support
of its argument, Plaintiff contends that the Court was
required to remand the action rather than dismiss for lack of
subject matter jurisdiction, because the case was removed.
Defendants contend that Plaintiff's motion should be
denied, because Plaintiff cannot seek relief based on
assertions that could have been presented before the entry of
is no dispute that Plaintiff's motion does not present
any newly discovered evidence. Therefore, the issue before
the Court is whether the court committed a manifest error of
law that should be corrected by amending the judgment.
statute at issue, 28 U.S.C. § 1447(c) states as follows:
A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded. An order remanding
the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of
the removal. A certified copy of the order of remand shall be
mailed by the clerk to the clerk of the State court. The
State court may thereupon proceed with such case.
Court dismissed this action for lack of subject matter
jurisdiction pursuant to 1447(c). Although Plaintiff failed
to assert the Court's authority to remand this action
instead of dismiss it during extensive briefing, the statute
is clear that in removed cases lacking subject matter
jurisdiction the Court must remand the case. Hughes v.
City of Cedar Rapids, Iowa, 840 F.3d 987, 993 (8th Cir.
2016). “In this case, the Court would have remanded
plaintiff's state law claims had it recalled at the time
of judgment that the case was removed from state court rather
than initially filed in federal court.” Williams v.
City of Beverly Hills, No. 4:04-CV-631 CAS, 2006 WL
1360875 at *2-3 (E.D. Mo. May 17, 2006) (Plaintiff's Rule
59(e) motion would have been granted and the case remanded if
it had been timely filed). Plaintiff's Rule 59(e) motion
is timely filed and should be granted.
IT IS HEREBY ORDERED that Plaintiff's
Motion to Remand is DENIED. [Doc. 79.]
IS FURTHER ORDERED that Plaintiff's Motion to
Alter or Amend Judgment Pursuant to Federal Rule of Civil