WILLIAM BARBOUR, United States District Judge
On March 13, 2002, this Court entered an Opinion and Order denying the Motion of Plaintiffs to Remand. motion, Plaintiffs urge the Court to amend its Order and overturn its prior decision, or alternatively, to amend its Order so that it may be appealed.
Under Rule 59(e) of the Federal Rules of Civil Procedure, "`The court . . . recognizes only three possible grounds for any motion for reconsideration: (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, and (3) the need to correct a clear error of law or prevent a manifest injustice.'"Nationwide Mut. Fire Ins. Co. v. Pham, 193 F.R.D. 493, 494 (S.D. Miss. 2000) (citations omitted). Litigants considering a Rule 59(e) motion have been "strongly cautioned" to carefully consider the three grounds for such a motion. Atkins, 130 F.R.D. at 626, n. 1. "Whatever may be the purpose of Rule 59(e), it should not be supposed that it is intended to give an unhappy litigant one additional chance to sway the judge." Id. (citing Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977)).
With the instant motion, Plaintiffs urge the Court to "rereview the pleading, arguments and law, reverse its decision and remand this case to state court where it belongs." Plaintiffs fail to establish any one of the three grounds for reconsideration, however. There has clearly been no intervening change of law. Plaintiffs have produced no evidence that was not previously available to it and that was not previously produced and carefully considered by the Court. Nor have Plaintiffs persuaded the Court that it made a clear error of law that would result in manifest injustice.
As for the Mississippi Supreme Court cases Lowery v. Guaranty Bank Trust Co., 592 So.2d 79, (Miss. 1991), and First United Bank of Poplarville v. Reid, 612 So.2d 1131 (Miss. 1992), to which Plaintiffs refer in their Motion, the Court carefully considered these cases in its determination in its original opinion in this case that no fiduciary relationship existed between Plaintiffs and the non-diverse Defendants. In both Lowery and Reid, the supreme court's finding that a genuine issue of material fact existed regarding the existence of a fiduciary relationship was predicated on an established relationship of trust between the plaintiff and defendants. However, these cases make clear that the existence of a fiduciary relationship must be considered on a case by cases basis. See Reid, 612 So.2d at 1138 (citing Lowery, 592 So.2d at 79) Plaintiffs in the case subjudice did not show that a basis for a trust relationship existed between them and the non-diverse Defendants such as would support a finding of a fiduciary relationship. The Court therefore found Lowery and Reid to be inapposite. Accordingly, the Court finds that the Motion of Plaintiffs to Amend pursuant to Rule 59(e) of the Federal Rules of Civil Procedure is not well taken and should be denied.
Plaintiffs also urge the Court to "rule that its opinion and order is final and appealable or enter partial final judgment as to the non-diverse Defendants and find that no just reason for delay exists [sic] for an appeal as to the Court's adjudication of fraudulent joinder." Memorandum of Plaintiffs. The Court construes Plaintiffs' Motion as one for Interlocutory Appeal pursuant to 28 U.S.C. § 1292, or alternatively, a Motion for Partial Final Judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Section 1292 provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b). The statute further provides that the court of appeals may permit an appeal of such an order.
Id. Rule 5(a) of the Federal Rules of Appellate Procedure allows a district court to amend an order to meet the requirement that the order being appealed contain a statement certifying the appealability of the order.
See Advisory Committee Notes to the 1967 and 1998 Amendments.
In its Order and Opinion of March 13, 2002, the Court found that the non-diverse Defendants were fraudulently joined and that no valid claims existed against them. The Court finds that there is substantial ground for difference of opinion" as to the following issues raised by Plaintiffs in their Motion to Remand and in the instant Motion: (1) whether the Court applied the correct standard for finding that non-diverse defendants have been fraudulently joined under controlling precedent in the United States District Court for the Fifth Circuit, (2) whether a fiduciary relationship arises in first party insurance contracts such as those presented in the case subjudice, and in the numerous other cases presently before the courts of this district, (3) whether an affirmative act is prerequisite to a finding that the statute of limitations on claims such as those in the case subjudice are tolled under Mississippi law, and (4) whether a party may justifiably rely on an oral representation contrary to the terms of a written contract. The Court therefore finds that an immediate appeal of its March 13, 2002, Opinion and Order "may materially advance the ultimate termination of the litigation." Accordingly, the Court hereby amends its March 13, 2002, Opinion and Order to reflect these findings and thereby certifies the appealability of that order.
IT IS THEREFORE ORDERED that the Motion of Plaintiffs to Amend, as it relates to overturning the Court's prior decision denying remand, [75-1] is hereby denied.
IT IS FURTHER ORDERED that the Motion of Plaintiffs to Amend, as it relates to certifying the appealability of the Court's Opinion and Order of March 13, 2002, [75-1] is hereby granted.
IT IS FURTHER ORDERED that all proceedings in this case are hereby stayed pending appeal.
IT IS FURTHER ORDERED that the Motion of Plaintiffs for Partial Final Judgment under Rule 54(b) of the Federal Rules of Civil Procedure [75-2] is hereby denied as moot.