UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 97-30532 Summary Calendar ___________________________

LISA WARREN,

Plaintiff-Appellant,

VERSUS

BLOCKBUSTER MUSIC, a division of Blockbuster Entertainment Group/Corporation,

Defendant-Appellee.

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Appeal from the United States District Court For the Eastern District of Louisiana (96-CV-1018-C) ___________________________________________________ December 3, 1997

Before KING, DAVIS, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Lisa Warren appeals the district court’s denial of her motion

to amend the judgment entered against her under Rule 59(e) of the

Federal Rules of Civil Procedure. For the reasons set forth below,

we affirm.

Warren brought this lawsuit against her former employer,

Blockbuster Music (“Blockbuster”), alleging employment

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. discrimination and intentional infliction of emotional distress.

Warren, an African-American female, claimed that her supervisor,

Sidney Babin, had fired her because of her race and gender. On

February 6, 1997, the district court granted summary judgment on

Warren’s employment discrimination claim in favor of Blockbuster.

On February 21, 1997, the court granted summary judgment on

Warren’s intentional infliction of emotional distress claim in

favor of Blockbuster. On February 24, 1997, the court entered an

order dismissing Warren’s complaint.

On March 6, 1997, Warren filed a motion for a new trial based

on the discovery of new evidence, which the district court

entertained as a motion to amend a judgment under Rule 59(e). On

February 18, 1997, Warren had deposed Ray Genovese, one of

Blockbuster’s regional managers. Genovese testified that Babin had

been terminated on or about February 14, 1997, and that Genovese’s

supervisor, Kurt Steltenpohl, told him that Babin had been fired

because of his poor treatment of black customers. Warren claimed

that this evidence was probative of whether Babin had discriminated

against her on the basis of race and thus warranted a trial on the

merits of her case.

In Lavespere v. Niagara Machine & Tool Works, Inc.,

(5th Cir. 1990), we outlined certain factors to be

considered in deciding whether to grant a Rule 59(e) motion in a

case like this one: 1) the reasons for the moving party’s default;

2 2) the importance of the omitted evidence to the moving party’s

case; 3) whether the evidence was available to the moving party

before she responded to the motion for summary judgment; and 4) the

likelihood that the non-moving party will suffer prejudice if the

case is reopened. After considering each of these factors, the

district court denied Warren’s motion.

On appeal, Warren contends that the district court failed to

give proper consideration to the first three factors outlined in

Lavespere. We review a district court’s denial of a Rule 59(e)

motion for abuse of discretion, Seneca v. Phillips Petroleum Co.,

(5th Cir. 1992), and conclude that the court did

not abuse its discretion here.

With respect to the first and third Lavespere factors, the

evidence concerning Babin’s termination was available to Warren

prior to the dismissal of her case. Warren learned of Babin’s

termination on February 18, 1997, two days before she filed a

response to Blockbuster’s renewed motion for summary judgment on

her intentional infliction of emotional distress claim, and six

days before the district court dismissed her complaint. Thus, she

failed to exercise reasonable diligence in bringing the evidence

before the court.

With respect to the second Lavespere factor, the evidence on

which Warren relies is inadmissible hearsay. Although Warren seeks

to characterize Steltenpohl’s statement as a party admission, she

3 has proffered no evidence that Steltenpohl was involved in the

decision to terminate Babin. Accordingly, Steltenpohl’s statement

cannot be considered a party admission. See Hill v. Spiegel, Inc.,

(6th Cir. 1983) (holding that statements by

managerial employees concerning reasons for plaintiff’s discharge

were not party admissions where there was no evidence that

declarants were involved in the decision to terminate plaintiff).

AFFIRMED.

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