     Case: 20-10046      Document: 00515464284         Page: 1    Date Filed: 06/24/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                    No. 20-10046                         June 24, 2020
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
VICKI BATES,

              Plaintiff - Appellant

v.

MONARCH DENTAL SERVICES,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC Case No. 3:19-CV-253


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Plaintiff Vicki Bates filed suit against Monarch Dental Services
(“Monarch”) in state court on April 28, 2017 based on the prosthodontic
treatment she received from Monarch. The state court granted summary
judgment in favor of Monarch and dismissed Bates’s case with prejudice. On
January 31, 2019, Bates filed the instant suit against Monarch in federal court



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 20-10046
seeking a declaratory judgment based on the Magnuson-Moss Warranty Act
(“MMWA”), alleging that Monarch breached an implied warranty under Texas
state law. Monarch filed a motion to dismiss on March 7, 2019, arguing that
(1) Bates’s claims were barred by res judicata, (2) she failed to state a claim
pursuant to the MMWA, and (3) any pendent state law claim under the Texas
Deceptive Trade Practices Act was barred by the statute of limitations. Bates
filed a timely response to Monarch’s motion to dismiss on March 28, 2019, but
she did not contest each ground upon which Monarch sought dismissal; Bates
addressed only the res judicata issue. She “concede[d] that this case meets the
classic requirements for issue or claims preclusion under prevailing Texas
law,” but argued an exception applied. Monarch filed a timely reply to Bates’s
response on April 10.
      Nearly five months later, on September 6, 2019, Bates filed an untimely
“Supplemental Response to Motion to Dismiss,” where she raised many
additional arguments and issues that she conceded “were not given adequate
attention, or attention at all, in the original Response to Motion to Dismiss.”
Three days later, Bates filed an “Amended Supplemental Response to Motion
to Dismiss.” Bates never requested (1) leave or permission to file the untimely
documents, (2) leave to amend her original timely response to Monarch’s
motion to dismiss, or (3) leave to amend her complaint. The court struck both
documents via electronic order. Bates never requested reconsideration of the
district court’s order striking her pleadings.
      The district court granted Monarch’s motion to dismiss based on res
judicata, finding that the exception to the doctrine advocated by Bates did not
apply. Bates filed a motion to alter or amend the judgment pursuant to Rule
59, presenting the same arguments she raised in her stricken supplemental
responses. The district court denied Bates’s motion.


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                                  No. 20-10046
      On appeal, Bates argues that the district court erred in denying her
motion to alter or amend and in dismissing her case based on res judicata. She
also presses the same arguments she attempted to raise in the district court in
her stricken supplemental responses.
      Bates never argued in the district court—and she does not argue on
appeal—that the district court erred in striking her untimely filings that
contained several arguments the district court did not consider. In fact, the
only mention that the filings were stricken appears in a footnote, where Bates
concedes that she filed the supplemental responses after the due date and
without leave of court. She appears to argue that the district court “would
have likely . . . granted” leave to file these untimely documents had she
requested it. It is well settled that “[a]n argument not raised before the district
court cannot be asserted for the first time on appeal.” Wilcox v. Wild Well
Control, Inc., 794 F.3d 531, 539 (5th Cir. 2015), as revised (Aug. 11, 2015). As
for its denial of Bates’s motion to alter or amend, the district court correctly
explained that a motion to alter or amend under Rule 59(e) “cannot be used to
raise arguments which could, and should, have been made before the judgment
issued,” Schiller v. Physicians Res. Grp., Inc., 342 F.3d 563, 567-68 (5th Cir.
2003), and that a Rule 59(e) motion “is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been offered or raised
before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479
(5th Cir. 2004).
      In sum, Bates’s arguments on appeal fall into two categories: (1)
arguments raised for the first time on appeal, and (2) arguments previously
raised and properly disposed of by the district court. We do not consider
evidence or arguments that were not presented to the district court, and as for
the arguments raised below, Bates raises no arguments or evidence to support
a finding of judicial error to justify reversal of the district court. Therefore,
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                                  No. 20-10046
after a review of the record and the parties’ briefs, we affirm the district court’s
grant of Monarch’s motion to dismiss for essentially the reasons as well-stated
in its memorandum opinion and order.
      AFFIRMED.




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