Cheek v. Bankers Specialty Insurance Company et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LINDSEY CHEEK 	CIVIL ACTION
VERSUS 	NO. 23-7106
CONVEX INSURANCE UK LTD, ET
AL.
SECTION “R” (1)
ORDER AND REASONS
Before the Court is plaintiff Lindsey Cheek’s 59(e) and 60(b) Motion
for Reconsideration. 1 	Defendant Convex Insurance Company UK Ltd.
(“Convex”) opposes the motion. 2 For the following reasons, the Court denies
the motion.
I. 	BACKGROUND
Plaintiff Lindsey Cheek had an insurance policy with Convex for her
residential property at 70545 Riverside Drive, Covington, Louisiana starting
on May 24, 2021. 3 Cheek simultaneously had a flood insurance policy on the
1 	R. Doc. 25.
2 	R. Doc. 29.
3 	R. Doc. 21-1, at 1.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 1 of 11

2
property with Bankers Specialty Insurance Company (Bankers). 4 Hurricane
Ida damaged the property on August 29, 2021. 5
Cheek sued Bankers and Convex in state court on August 25, 2023,
asserting breach of insurance contract and bad faith handling of insurance
claims. 6 	The defendants removed the action to federal court on November
29, 2023. 7 Bankers and Cheek settled on September 26, 2024. 8
Thereafter, Convex moved for summary judgment. 9 	Convex asserted
that it did not breach the insurance contract, nor did it violate the Louisiana
bad faith statutes because it did not receive notice of the claim until this
litigation. 10 Cheek filed neither a motion for an extension of the submission
date for summary judgment nor a response in opposition to the motion for
summary judgment.
The Court considered the record and granted summary judgment for
Convex. 11 The Court found no, and Cheek pointed to no, material capable of
4 	Id.
5 	Id.
6 	R. Doc. 1-2.
7 	R. Doc. 1.
8 	R. Doc. 9.
9 	R. Doc. 21.
10 	R. Doc. 21. Convex construed notice of this litigation as notice of the
claim. Convex subsequently inspected the property on June 28, 2024
and paid Cheek $23,171.99 through her counsel for this litigation. R.
Doc. 21-2, at 3.
11 	R. Doc. 23.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 2 of 11

3
being made admissible in the record that established that Cheek provided
proof of loss to Convex prior to this lawsuit, an essential element of her
claims. The Court thus found that there was no genuine issue of material fact
as to Cheek’s provision of proof of loss to Convex and thus Convex was
entitled to summary judgment as a matter of law.
Cheek now moves for the Court to reconsider and vacate its prior ruling
granting Convex’s motion for summary judgment. 12 	Cheek asserts that the
parties had mutually agreed upon an extension of the submission date for
summary judgment and thus the Court’s summary judgment decision was
premature. 	Cheek further asserts that there is evidence that shows that
Cheek submitted a proof of loss, and the Court therefore made a mistake of
material fact. The Court considers the motion below.
II. 	LAW AND ANALYSIS
A. Federal Rule of Civil Procedure 59(e)
A district court has considerable discretion to grant or deny a motion
under Federal Rule of Civil Procedure 59(e). 	See Edward H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). 	The Court must “strike the
proper balance between two competing imperatives: (1) finality, and (2) the
12 	R. Doc. 25.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 3 of 11

4
need to render just decisions on the basis of all the facts.” 	Id. 	But
reconsideration “is an extraordinary remedy that should be used sparingly.”
Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Under 59(e),
courts do not “address new arguments or evidence that the moving party
could have raised before the decision issued.” 	Banister v. Davis, 590 U.S.
504, 508 (2020).
The Fifth Circuit requires that the moving party show that the motion
is necessary based on at least one of the following criteria: (1) an intervening
change in the controlling law; (2) newly discovered evidence that was
previously unavailable; or (3) to correct a manifest error of law or fact.
Demahy v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012) (citing
Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003)). A
manifest error is “an obvious error that is ‘plain and indisputable, and that
amounts to a complete disregard of the controlling law.’” 	Wease v. Ocwen
Loan Servicing, L.L.C., 852 F. App’x 807, 809 (5th Cir. 2021) (quoting Guy
v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004)).
Here, there was no intervening change in the controlling law in the two
days between the Court granting the motion for summary judgment and
Cheek’s 59(e) motion. 	Cheek also has not presented newly discovered
evidence 	that 	was 	previously 	unavailable. 	While 	Cheek 	has 	included
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 4 of 11

5
evidence that was not previously before the Court, Cheek has not suggested,
nor could she, that the evidence was previously unavailable. Courts are not
to entertain “arguments that could have been but were not raised” on a 59(e)
motion. 	Banister, 590 U.S. at 516. 	Thus, the only ground on which Cheek
may raise her 59(e) motion is to correct a manifest error of law or fact.
The 	Court 	made 	no 	such 	manifest 	error. 	The 	Court 	carefully
considered the evidence that was in the record on the submission date.
Plaintiff now asserts that the Court erred in not considering other evidence
that she alleges establishes that she provided proof of loss. This was not an
error because it was impossible; none of that evidence was before the Court. 13
The Fifth Circuit has held that “an unexcused failure to present evidence
available at the time of summary judgment provides a valid basis for denying
a subsequent motion for reconsideration.” Templet v. HydroChem Inc., 367
F.3d 473, 479 (5th Cir. 2004) (affirming district court’s granting of summary
judgment for defendants and denial of plaintiffs’ subsequent 59(e)). 	Here,
like the plaintiffs in Templet, the underlying facts were well within Cheek’s
knowledge prior to the Court’s entry of judgment, and Cheek failed to include
13 	Attaching new documents to a 59(e) motion that were not before the
Court at summary judgment does not mean that the Court failed to
consider the evidence in the record, as the new documents were not in
the record.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 5 of 11

6
these materials “in any form of opposition or response to the Defendant’s
motion for summary judgment.” Id.
The Court is not to consider new evidence that the moving party could
have raised before the decision issued on a 59(e) motion. Banister, 590 U.S.
at 508. 	Cheek attached 432 pages of exhibits to her 59(e) motion and
submitted 295 pages of affidavits and exhibits two weeks later. None of this
material is new to the plaintiff; all was within her possession or control when
her response to the summary judgment motion was due and much has been
in her control for more than four years, since Hurricane Ida made landfall in
August 2021. The Court, thus, does not consider this additional material.
The Court notes that even if it were to consider the voluminous
additions plaintiff has made to the record with the benefit of the defendant’s
motion, the Court’s order, and additional time, none of it rejects defendant’s
premise in the original summary judgment motion that plaintiff did not file
proof of loss. The emails Cheek repeatedly points to show that she contacted
her insurance broker rather than Convex’s agent. 	Cheek’s belatedly filed
affidavit 	states 	that 	she 	contacted 	her 	insurance 	representatives, 	not
Convex. 14 Contacting her insurance broker is insufficient proof of loss. See
Dynamic Indus., Inc. v. Walaa Corp. Inc. So., 2023 WL 2474220, at *2 (5th
14 	R. Doc. 27, at 2.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 6 of 11

7
Cir. 2023) (noting that an insurance broker is an agent of the insured, not
insurer). The email from her insurance broker underscores this, stating that
the “most efficient and effective way to report a claim is directly to the
carrier.” 15 Even the voluminous additions do not show that the Court made
a manifest error of fact in determining that Cheek did not submit a proof of
loss to Convex.
In the alternative, plaintiff asserts that the Court made a manifest error
by ruling on the summary judgment motion prematurely. The Court did not.
The Court ruled on the summary judgment motion nearly two weeks after its
submission date and more than a month after it was initially filed. Cheek did
not inform the Court of her desired continuance of the submission date for
the motion for summary judgment in the three weeks that passed after her
response was due. 	Cheek points to no manifest error of fact or law on the
record at the time that the Court entered summary judgment for Convex.
Absent such a showing, there is no grounds for the Court to grant a motion
under 59(e). The Court denies Cheek’s 59(e) Motion.
B. Federal Rule of Civil Procedure 60(b)
Under Rule 60(b), the court may relieve a party from final judgment
based on “(1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6)
15 	R. Doc. 25-8, at 1.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 7 of 11

8
any other reason justifying relief from the operation of the judgment.” Fed.
R. Civ. P. 60(b).
Here, Cheek asserts that her failure to either respond to the summary
judgment motion with evidence or request an extension was excusable
neglect under 60(b)(1). 	The Fifth Circuit applies the Pioneer standard to
excusable neglect analysis. D.R.T.G. Builders, L.L.C. v. Occupational Safety
& Health Rev. Comm’n, 26 F.4th 306, 312 (5th Cir. 2022) (citing Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380 (1993)). 	Under
that standard, the Fifth Circuit looks to “the danger of prejudice [to the
defendant], the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in good
faith.” 	Pioneer, 507 U.S. at 395. As the party seeking relief, Cheek has the
burden of establishing excusable neglect. See D.R.T.G. Builders, 26 F.4th at
312.
Plaintiff filed the 60(b) motion just two days after this Court entered
its order and reasons on the summary judgment motion, so delay is not at
issue, nor is plaintiff’s good faith. The questions remaining are the danger of
prejudice to the defendant and whether Cheek’s reason for the inaction,
including whether it was in her reasonable control, merits extraordinary
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 8 of 11

9
relief under 60(b)(1). See Miller v. Ohio Sec. Ins. Co., 2025 WL 3034704, *2
(5th Cir. 2025).
Here, there is a significant danger of prejudice to the defendant in re-
opening the proceedings. 	This case was filed in August 2023. 	Re-opening
the case now would require resetting the trial and all other pending
deadlines, including the expert report deadline, re-opening discovery, and
issuing new subpoenas. 	The trial, which was previously scheduled for
February, would certainly be delayed, extending again this lengthy litigation.
There is a significant danger of prejudice to the defendant in re-opening the
case.
Further, Cheek’s reason for inaction does not merit extraordinary relief
under 60(b)(1). Failure to file any evidence of proof of loss into the record
or 	respond 	in 	any 	way 	was 	gross 	carelessness. 	“Gross 	carelessness,
ignorance of the rules, or ignorance of the law are insufficient bases for
60(b)(1) relief.” 	Edward H. Bohlin Co., 6 F.3d at 356. 	Filing a motion to
extend the deadline for a response to summary judgment or a response to
the motion were entirely within plaintiff’s control. 	Defense counsel even
informed plaintiff’s counsel that she needed to file such a motion. 16 Plaintiff
does not explain how or why she was unable to file an opposition or a simple
16 	R. Doc. 29, at 7.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 9 of 11

10
motion for an extension between the date the summary judgment motion
was filed and the date her opposition was due. 	Plaintiff’s counsel filed
multiple motions in that time frame in other cases and made appearances in
other courtrooms in this District. 17 Further, Cheek is herself an attorney who
should understand the importance of filings with the court. 18 	Granting
60(b)(1) relief on the grounds that it was excusable neglect to fail to make
such a motion would be an abuse of this court’s discretion. Indeed, the Fifth
Circuit has held that “a court would abuse its discretion if it were to reopen a
case under Rule 60(b)(1) when the reason asserted as justifying relief is one
attributable solely to counsel’s carelessness . . . .” Id. at 357.
Rule 60(b)(6) allows relief from a judgment for “any other reason that
justifies relief.” Fed. R. Civ. P. 60(b)(6). The Fifth Circuit has “consistently
held that relief under 60(b)(6) is mutually exclusive from relief available
under sections (1)-(5).” Hesling v. CSX Transp. Inc., 396 F.3d 632, 643 (5th
Cir. 2005). That means that “an action cannot be brought through the catch-
all provision of Rule 60(b)(6) if it could have been brought through one of
the Rule's first five subsections.” United States v. Fernandez, 797 F.3d 315,
319 (5th Cir. 2015).
17 	R. Doc. 29, at 9.
18 	R. Doc. 21-10, at 1.
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 10 of 11

11
Cheek claims she is entitled to relief under Rule 60(b)(6) for the same
reasons she claims she is entitled to relief under Rule 60(b)(1): it was
excusable neglect to fail to respond to the summary judgment motion or
request an extension and the Court failed to consider evidence that was not
in the record. “This claim falls squarely within . . . Rule 60(b)(1),” see id. at
319-20, and Cheek “has not alleged a separate basis for relief under Rule
60(b)(6),” see D.R.T.G. Builders, L.L.C. v. Occupational Safety & Health
Rev. Comm'n, 26 F.4th 306, 313 (5th Cir. 2022). Even assuming, arguendo,
that Cheek did allege a separate basis for relief, she has failed to show
“extraordinary circumstances” that would result in manifest injustice. Thus,
Cheek is not entitled to relief under Rule 60(b)(6).
III. 	CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s motion to re-
open the case and vacate the judgment.
New Orleans, Louisiana, this 19th day of December, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
Case 2:23-cv-07106-SSV-JVM Document 31 Filed 12/19/25 Page 11 of 11