Fidelity State Bank, Garden City, Kan. v. Oles, Civ. A. No. 89-1043-T.
| Decision Date | 29 July 1991 |
| Docket Number | Civ. A. No. 89-1043-T. |
| Citation | 130 BR 578 |
| Court | U.S. District Court — District of Kansas |
| Parties | The FIDELITY STATE BANK, GARDEN CITY, KANSAS, Plaintiff, v. David OLES, Defendant. |
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Charles E. Owen, II, Garden City, Kan., J. Michael Kennalley, Hershberger, Patterson, Jones & Roth, Wichita, Kan., for plaintiff.
David Oles, pro se.
This matter is before the court on the defendant's pro se memorandum and brief in support of motion to reconsider. Doc. 9. The defendant has not filed a separate motion to reconsider. The court will, however, consider the memorandum that has been filed as a motion to reconsider. The defendant seeks to have the court reconsider its order of May 23, 1991 (Doc. 8) which denied his motion to vacate default judgment. The court summarized the relevant facts in the earlier opinion and will discuss only the facts necessary to address the motion to reconsider.
The refusal to grant relief in a motion to reconsider is reviewed under an abuse of discretion standard. See Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). A motion to reconsider is appropriate when the court has obviously misapprehended a party's position or the facts or applicable law, or when the party produces new evidence that could not have been obtained through the exercise of due diligence. Anderson v. United Auto Workers, 738 F.Supp. 441, 442 (D.Kan. 1990); Taliaferro v. City of Kansas City, 128 F.R.D. 675, 677 (D.Kan.1989). An improper use of the motion to reconsider "can waste judicial resources and obstruct the efficient administration of justice." United States ex rel. Houck v. Folding Carton Administration Committee, 121 F.R.D. 69, 71 (N.D.Ill.1988). Thus, a party who fails to present his strongest case in the first instance generally has no right to raise new theories or arguments in a motion to reconsider. Renfro v. City of Emporia, 732 F.Supp. 1116, 1117 (D.Kan. 1990); Butler v. Sentry Insurance, 640 F.Supp. 806, 812 (N.D.Ill.1986). The court is not required to supply the rationale that the parties were unable to find. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (). For these same reasons, a court may decline to entertain new arguments raised for the first time in the reply, particularly when the argument involves complex facts or questions. See, e.g., United States v. Jenkins, 904 F.2d 549, 554 n. 3 (10th Cir.1990); Glad v. Thomas County Nat'l Bank, No. 87-1299-C, slip op. at 2 (D.Kan. Oct. 10, 1990) (1990 WL 171068).
The defendant raises a number of issues in his motion to reconsider. The defendant first argues that the court entered its earlier order prior to the defendant's filing of his brief in support of his motion to vacate. The defendant filed his motion to vacate on May 9, 1991. The plaintiff filed its response brief on May 14, 1991. No reply brief was filed and the court ruled on May 23, 1991. The court was not required to wait indefinitely for the defendant to file a legal memorandum in support of his motion to vacate. See D.Kan. Rule 206.
The defendant next notes that he is currently in Chapter 13 bankruptcy in the United States Bankruptcy Court for the Northern District of Texas. The size of the judgment against the defendant in the instant case would disqualify him from relief under Chapter 13. Therefore, the defendant may be subject to conversion or dismissal of his bankruptcy case. The court does not believe that these facts justify relief from a default judgment, if the default judgment is otherwise proper.
The defendant next reasserts that he was not personally served with summons and complaint in the present case. In his affidavit, Exhibit E to Doc. 9, defendant merely states that he does not recall ever being personally served with summons and complaint. In the prior order, the court noted that the return of service indicated that the summons and complaint had been personally served upon the defendant in Amarillo, Texas by a Deputy Sheriff. The return of service is strong evidence of the facts contained therein. It is not conclusive, however, and may be controverted upon a showing that the return is inaccurate. 4A C. Wright & A. Miller, Federal Practice and Procedure § 1130 (2d ed. 1987). The fact that the defendant does not recall being served is an insufficient showing to controvert the return of service.
The defendant argues that the filing of this case was a violation of the automatic stay in bankruptcy. The court rejected this argument in the prior order because the defendant had provided the court with no documentation to demonstrate the pendency of a bankruptcy case. The defendant has now provided the court with certain documentation from his earlier bankruptcy filing. For the reasons discussed below, the court finds that no violation of the automatic stay occurred.
Section 362 of the Bankruptcy Code provides the automatic stay. As relevant here, section 362 provides:
11 U.S.C. § 362(a)(1). Section 362(a)(1) by its terms encompasses only proceedings which were or could have been instituted before the filing of the bankruptcy petition. Claims arising post-petition are not subject to the automatic stay. See In re Chateaugay Corp., 86 B.R. 33, 37-38 (S.D.N.Y.1987); Turner Broadcasting System, Inc. v. Sanyo Elec., Inc., 33 B.R. 996, 999 (N.D.Ga.1983), aff'd without published op., 742 F.2d 1465 (11th Cir.1984); In re Hudson Oil Co., 100 Bankr. 72, 76 (Bankr. D.Kan.1989) (citing In re Powell, 27 B.R. 146, 147 (Bankr.W.D.Mo.1983)); see also 2 Collier on Bankruptcy ¶ 364.041 (15th ed.1979) (claims or actions which arise after the commencement of the bankruptcy case not included within the automatic stay). For purposes of the automatic stay, the acts constituting the claim must arise before the filing of the bankruptcy petition. Grady v. A.H. Robins Co., 839 F.2d 198 (4th Cir.), cert. dismissed, 487 U.S. 1260, 109 S.Ct. 201, 101 L.Ed.2d 972 (1988).
According to the matters presented to the court, the defendant filed his first bankruptcy petition in 1985. See Doc. 9, Exh. D. Plaintiff's complaint alleged that in May 1987, the defendant caused a checking account to be opened with the plaintiff bank. Thereafter, according to the complaint, the defendant caused worthless checks to be deposited to the account. The defendant is then alleged to have withdrawn the deposited amounts from the account. The conduct alleged in plaintiff's complaint arose after the filing of the 1985 bankruptcy petition and is not governed by the automatic stay. Given this resolution, the court need not address the defendant's argument that the judgment is void for violation of the automatic stay.
The defendant next argues that he made an informal appearance and therefore should have been given notice of the motion for default judgment. The court previously rejected this argument and sees no reason to reconsider its ruling. The fact that some informal communication may have occurred did not excuse the defendant from the requirement of filing an answer to the complaint.
The defendant argues that the default judgment must be set aside because no hearing was held on damages. No evidentiary hearing was held, nor was one required under Rule 55(b) of the Federal Rules of Civil Procedure. The court was satisfied with the matters presented to it in plaintiff's motion for default judgment.
The defendant argues that the complaint fails to allege a cause of action or state a claim on which relief can be granted. The court need not address this issue since it has been raised for the first time in the motion to reconsider. The court has, however reviewed the complaint and concludes that plaintiff's claim does state a claim upon which relief can be granted. Plaintiff's complaint would survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6).
The defendant argues that the court lacked personal jurisdiction over him. He alleges that he does not do business in Kansas, that he did not reside in Kansas, and that he has no minimum contacts with the State of Kansas justifying the exercise of personal jurisdiction. Additionally, the defendant asks the court to reconsider its prior holding that, "The defendant's conduct, as alleged in the complaint, brings him within the provisions of the Kansas long arm statute, K.S.A. § 60-308(b)(2) ()."
The issue of personal jurisdiction requires a two part analysis. First, since this is a diversity case, the court must look to the law of the forum state for the statutory basis of in personam jurisdiction. Green Country Crude, Inc. v. Avant Petroleum, Inc., 648 F.Supp. 1443, 1445 (D.Kan.1986). The court must determine whether the defendant's conduct falls within the scope of one of the provisions of the Kansas long arm statute, K.S.A. § 60-308(b). Second, the court must ascertain whether the exercise of jurisdiction comports with the due process requirements of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny. See J.E.M. Corp. v. McClellan, 462 F.Supp. 1246 (D.Kan.1978).
The plaintiff must make a prima facie showing that the statutory and due process requirements are satisfied, thus permitting the court...
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