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

                                                                            FILED
                                                                         January 10, 2008

                                       No. 06-41574                   Charles R. Fulbruge III
                                                                              Clerk

JUAN MOLINA

                                                  Plaintiff-Appellant
v.

EQUISTAR CHEMICALS LP

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:05-CV-327


Before JONES, Chief Judge, and STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Juan Molina (“Molina”) raises two issues on appeal.
The first is whether the district court erred in granting Defendant-Appellee
Equistar Chemicals L.P.’s (“Equistar”) motion for summary judgment. The
second is whether the district court erred in denying Molina’s motion to alter or
amend judgment. Holding that we lack jurisdiction to consider the first issue
and there is no reversible error on the second, we affirm the judgment of the
district court.


       *
        Pursuant to 5TH CIR. R. 47.5, this Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                     No. 06-41574

                         I. FACTS AND PROCEEDINGS
      On July 8, 2005, Molina filed this action against Equistar, alleging
national origin discrimination and retaliation, in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, -3, and Chapter 21 of the Texas
Labor Code, TEX. LABOR CODE ANN. §§ 21.051, 21.055.                    Molina has now
abandoned his claim of national origin discrimination. With respect to his claim
of retaliation, Molina alleged that he was discharged after he reported national
origin discrimination to his supervisor at Equistar.                    Molina sought
reinstatement, lost wages and benefits, and compensatory damages. Equistar
answered on August 24, 2005.
      After seven months of discovery, Equistar filed a motion for summary
judgment on April 14, 2006. Molina responded on May 4, 2006. Subsequently,
on May 18, 2006, the district court sua sponte struck Equistar’s motion for
summary judgment for failure to comply with Local Rule 10.2 and the district
court’s general order, because the courtesy copy of the motion contained a two-
sided exhibit. On June 15, 2006, the district court granted Equistar leave to
refile its motion and deemed the motion filed on that date.1 This refiled motion
was identical to Equistar’s original motion. On June 30, 2006, the district court
granted Equistar’s motion for summary judgment and entered final judgment.
      On July 17, 2006, Molina filed a motion for a new trial based on an error
of law and newly discovered evidence, which the district court correctly
construed as a motion to alter or amend judgment pursuant to Federal Rule of
Civil Procedure 59(e). On July 28, 2006, Equistar filed its response. On
September 18, 2006, the district court denied Molina’s motion.
      On October 17, 2006, Molina filed a notice of appeal, identifying the “order
granting Summary Judgment” as the order being appealed. On October 18,


      1
        For some reason, even though not required, Equistar separately refiled an identical
motion for summary judgment on June 20, 2006.

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2006, however, Molina filed a second notice of appeal, identifying the “order
denying Motion for New Trial” as the order being appealed. Two weeks later, on
November 1, 2006, Molina filed a motion to withdraw his October 17, 2006
notice, which the district court granted on November 5, 2006.
                               II. DISCUSSION
A. Jurisdiction
      As a preliminary matter, we must identify the particular order or orders
over which we have jurisdiction. See Turnbull v. United States, 929 F.2d 173,
176 (5th Cir. 1991). In regard to this appeal, the district court entered the
following two orders: (1) an order granting Equistar’s motion for summary
judgment and (2) an order denying Molina’s Rule 59(e) motion. Equistar
primarily contends that we lack jurisdiction to consider the summary judgment
order because Molina did not designate this order in his second notice of appeal
and because he withdrew his first notice of appeal, which did designate that
order. Based on Molina’s actions, Equistar argues that we only have jurisdiction
to review the district court’s Rule 59(e) order.
      Federal Rule of Appellate Procedure 3(c) provides that “[t]he notice of
appeal must . . . designate the judgment, order, or part thereof appealed from.”
The Supreme Court has construed Rule 3 as jurisdictional in nature, see Torres
v. Oakland Scavenger Co., 487 U.S. 312, 317–18 (1988), and we have explained
that although we construe notices of appeal liberally, we may not waive the
jurisdictional requirements if they have not been satisfied, see Pope v. MCI
Telecommunications Corp., 937 F.2d 258, 266 (5th Cir. 1991). “Where the
appellant notices the appeal of a specified judgment only or a part thereof, . . .
this [C]ourt has no jurisdiction to review other judgments or issues which are
not expressly referred to and which are not impliedly intended for appeal.” Pope,
937 F.2d at 266 (internal quotations omitted). Thus, this Court may exercise
appellate jurisdiction, despite an improper designation under Rule (3), only

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“where it is clear that the appealing party intended to appeal the entire case.”
Trust Co. Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1148 (5th Cir. 1992).
       Although Molina clearly violated Rule 3(c) by not designating the
summary judgment order in his second notice of appeal, this error does not
necessarily defeat his right to appeal that order. Indeed, we must examine
whether “it is clear, from the face of the notice, that the appeal intends to raise
all issues.” Pope, 937 F.2d at 266–67. Here, there is nothing to indicate that
Molina intended to appeal the summary judgment order. Molina had both
orders before him, but his second notice of appeal referred only to the Rule 59(e)
order. Additionally, although Molina referenced the summary judgment order
in his first notice, he subsequently filed a motion with the district court to
withdraw it, which was granted.               Such an express withdrawal supports
Equistar’s argument that Molina only intended to appeal the denial of his Rule
59(e) motion. Furthermore, Molina’s brief does nothing to suggest that, separate
and distinct from his Rule 59(e) motion, he intended to appeal the summary
judgment order.2 Based upon these facts, we conclude that Molina expressly
abandoned his appeal of the underlying award of summary judgment. See A & A
Wrecker Serv. Inc. v. City of Galveston, No. 97-40803, 1998 WL 307727, at *3–4
(5th Cir. May 19, 1998) (per curiam) (unpublished); Capital Parks, Inc. v. Se.
Adver. & Sales Sys., Inc., 30 F.3d 627, 630 (5th Cir. 1994); C. A. May Marine
Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir. 1981) (per curiam).


       2
         In his brief, Molina makes no distinction between evidence that was before the district
court on summary judgment and the allegedly “newly discovered” evidence discussed in his
Rule 59(e) motion. Molina repeatedly refers to information in his allegedly “newly discovered”
evidence––two depositions, a declaration, and a document––in his discussion of the district
court’s summary judgment decision, even though such evidence was not before the court at
that time. This use of evidence outside the summary judgment record in his brief lends
support to Equistar’s argument that Molina did not intend to appeal the summary judgment
order. Importantly, Molina never argued that the district court erred in granting summary
judgment solely on the evidence it had before it at the time; instead, he relies heavily on the
allegedly “newly discovered” evidence contained in his Rule 59(e) motion.

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Therefore, Molina has only perfected an appeal of the district court’s order
denying his Rule 59(e) motion.
B. Denial of Molina’s Rule 59(e) Motion
      The denial of a motion to alter or amend judgment under Federal Rule of
Civil Procedure 59(e) is reviewed for abuse of discretion.       See Templet v.
HydroChem Inc., 367 F.3d 473, 477 (5th Cir. 2004). “Under this standard of
review, the district court’s decision and decision-making process need only be
reasonable.” Id. “However, to the extent that a ruling was a reconsideration of
a question of law . . . the standard of review is de novo.” Ross v. Marshall, 426
F.3d 745, 763 (5th Cir. 2005) (internal quotations omitted).
      Molina appeals the district court’s denial of his Rule 59(e) motion. “A Rule
59(e) motion calls into question the correctness of a judgment.” Templet, 367
F.3d at 478 (internal quotations omitted). We have noted that “[r]econsideration
of a judgment after its entry is an extraordinary remedy that should be used
sparingly.” Id. at 479. Such a motion may not be used simply “for rehashing
evidence, legal theories, or arguments” that could have been offered before
judgment was entered. Id.; see also Swanson v. Perez, No. 05-10445, 2007 WL
2326160, at *2 (5th Cir. Aug. 15, 2007) (per curiam) (unpublished) (stating that
“[s]uch motions cannot be used to invoke arguments which were available prior
to judgment and should have been made before the judgment issued and cannot
be used to raise a new legal theory of the case”). Rather, this type of motion
“serves the narrow purpose of allowing a party to correct manifest errors of law
or fact or to present newly discovered evidence.” Templet, 367 F.3d at 479
(internal quotations omitted). Thus, a Rule 59(e) motion “must clearly establish
either a manifest error of law or fact or must present newly discovered evidence”
that was not available before the judgment issued. Schiller v. Physicians Res.
Group Inc., 342 F.3d 563, 567 (5th Cir. 2003) (internal quotations omitted).



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      We have previously held that a lower court may only entertain a Rule
59(e) motion based on evidence not in the summary judgment record under
“extraordinary circumstances.” ICEE Distribs., Inc. v. J&J Snack Foods Corp.,
445 F.3d 841, 847 (5th Cir. 2006). A party’s “unexcused failure to present
evidence available at the time of summary judgment provides a valid basis for
denying a subsequent motion for reconsideration.” Id. (internal quotations
omitted). A Rule 59(e) motion should only be granted where there is new
evidence that (1) probably changes the outcome of the case; (2) could not have
been discovered earlier by proper diligence; and (3) is not merely cumulative or
impeaching. See, e.g., Infusion Res., Inc. v. Minimed, Inc., 351 F.3d 688, 696–97
(5th Cir. 2003).
      Molina raised two issues in his Rule 59(e) motion. First, Molina argued
that the district court erred in not providing him with ten days to respond to
Equistar’s refiled motion for summary judgment as required by Rule 56(c).
Second, Molina argued that he had “newly discovered” evidence that warranted
reconsideration of the judgment entered against him. The district court soundly
rejected both arguments, and on appeal, Molina simply reasserts them. We
consider both in turn.
      We first evaluate whether the district court committed a manifest error of
law when it ruled on Equistar’s motion for summary judgment without a new or
supplemental response from Molina. We conclude that the court did not commit
legal error, because Molina was given the requisite amount of time to respond
to Equistar’s motion. Equistar filed its motion on April 14, 2006, the last day for
filing dispositive motions under the court’s scheduling order. The district court
provided Molina with a full twenty days in which to respond, pursuant to
Southern District of Texas Local Rule 7.3, which he did on May 4, 2006.
Molina’s response contained no qualifier or claim that he had not been afforded
ample time to respond or conduct discovery. In fact, Molina expressly asserted

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that he offered “well-reasoned rebuttals” to Equistar’s motion, which were
accompanied by “ample summary judgment evidence to create a fact question.”
The fact that the district court struck Equistar’s April 14, 2006 motion for a
technical defect and allowed Equistar to refile its motion on June 15, 2006 is
irrelevant. Such a refiling of an identical motion does not entitle Molina to
submit a new or supplemental response.
       Nevertheless, even if this refiling did present Molina with an opportunity
to file a new or supplemental response, the district court did not act improperly
when it ruled on Equistar’s motion. The district court granted Equistar leave
to refile its motion, deemed that motion filed as of June 15, 2006, and provided
the parties with notice of this action. Consequently, under Rule 56(c), Molina
had until June 29, 2006 to respond. When the district court ruled on Equistar’s
motion on June 30, 2006, it had afforded Molina the requisite time to respond.3
As a result, we conclude that the district court did not commit legal error.
       We next consider whether the district court abused its discretion when it
refused to reconsider its summary judgment order in light of Molina’s allegedly
“newly discovered” evidence.4           Molina claims that he is entitled to such
reconsideration because Equistar failed to timely produce witnesses for
deposition and critical documents. This argument, however, is disingenuous.
Even though discovery began on August 29, 2005, Molina waited over seven
months until March 28, 2006, one month before the discovery deadline, before

       3
         Although Local Rule 7.3 provides a party with twenty days to respond to a motion for
summary judgment, the district court, in its discretion, may “shorten or extend time periods”
as it deems appropriate. S.D. Tex. Local Rule 7.3. In this case, the district court’s exercise of
its discretion to shorten the time for response and rule on the motion on June 30, 2006 was
reasonable. Molina had already responded to the identical motion for summary judgment on
May 4, 2006 and had not indicated any desire to file a new or supplemental response.
Morever, the trial date of July 5, 2006 was rapidly approaching.
       4
        Molina’s allegedly “newly discovered” evidence included (1) the deposition of Equistar
employees Albert Hesseltine and Michael Peterson, (2) the declaration of Equistar employee
Albert Alvarado, and (3) Equistar’s Corrective Action Procedure document.

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propounding written discovery to Equistar. Molina then waited three additional
weeks before informing Equistar that he wanted to depose twelve witnesses.
After considering the time constraints, as trial was set for July 5, 2006, Molina
decided to depose only two witnesses––Hesseltine and Peterson––which occurred
on May 31, 2006.5 It was during these depositions that Molina learned of certain
documents, including Equistar’s Corrective Action Procedure, which he
subsequently requested and Equistar produced on June 22, 2006. At no point
during discovery did Molina ask the district court for additional time to file a
new response or leave to amend his prior response. Based upon this record,
Molina completely failed to demonstrate why he could not have pursued this
“critical” discovery earlier in the litigation by proper diligence. Had Molina
complied with the discovery deadlines and aggressively sought to depose the
necessary Equistar employees and request appropriate documentation, he would
have easily been able to present this evidence in his response to Equistar’s
motion for summary judgment. Molina, however, did not do so and instead
unsuccessfully attempts to blame Equistar. We conclude that the district court
did not abuse its discretion when it refused to reconsider its judgment based on
Molina’s allegedly “newly discovered” evidence. See ICEE Distribs., Inc., 445
F.3d at 847; Infusion Res., Inc., 351 F.3d at 696–97. Accordingly, we hold that
the district court did not err in denying Molina’s Rule 59(e) motion.
                                   III. CONCLUSION
       For the foregoing reasons, we AFFIRM.




       5
        Notably, Molina did not request the transcripts of these two depositions from the court
reporting service until June 30, 2006.

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