Kidwell v. Board of Com'Rs of Shawnee County
| Citation | 40 F.Supp.2d 1201 |
| Decision Date | 22 September 1998 |
| Docket Number | No. 96-4112-SAC.,96-4112-SAC. |
| Parties | David R. KIDWELL, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF SHAWNEE COUNTY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Brenda L. Head, Davis, Unrein, Hummer, McCallister, Biggs & Head, L.L.P., Topeka, KS, for plaintiff.
Larry G. Karns, Glenn, Cornish, Hanson & Karns, Chtd., Topeka, KS, for defendant.
This employment discrimination case comes before the court on the defendant's motion to reconsider (Dk.72), the defendant's motion for summary judgment (Dk.75), and the defendant's motion to review the magistrate judge's order (Dk.95). The plaintiff has filed a written opposition to the defendant's motion for summary judgment. (Dk.90). The court considers these pending motions ready for ruling.
MOTION TO RECONSIDER (Dk.72).
The defendant asks the court to reconsider its order denying the defendant's motion to dismiss and to allow the defendant to submit additional evidence in support through its motion for summary judgment. (Dk.72). According to the defendant's motion to reconsider, the defendant's counsel telephoned the district judge's chambers on September 1, 1997, asking that the motion to dismiss not be decided as he would be filing a summary judgment motion which would incorporate the motion to dismiss. The defendant's counsel states that he was "assured the Motion to Dismiss would not be ruled on" and relied on the same in not supplementing its motion to dismiss. (Dk.72, p. 2).
On September 30, 1997, the court filed its order denying the defendant's motion to dismiss. In seeking reconsideration, the defendant argues it has new evidence "obtained through discovery" after filing "its Motion to Dismiss ... that directly pertains" to prior arguments and that this evidence was never considered by the court in its prior ruling. (Dk.72, p. 2). The defendant notes that Fed.R.Civ.P. 12 permits a court to treat a motion to dismiss as a motion for summary judgment when matters outside the pleadings are presented. The defendant says it has evidence that many of the alleged discriminatory events occurred more than 300 days before August 1, 1995, and that the Equal Employment Opportunity Commission ("EEOC") "never received any alleged `charge letters' from plaintiff in August 1995." (Dk.73, p. 3). The plaintiff has not filed any response.
As the rules of this court provide, "[a] motion to reconsider shall be based on (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." D.Kan.Rule 7.3. A court's rulings "are not intended as first drafts, subject to revision and reconsideration at a litigant's pleasure." Quaker Alloy Casting Co. v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988). A motion to reconsider is appropriate if the court has obviously misapprehended a party's position, the facts, or applicable law, or if the party produces new evidence that could not have been obtained through the exercise of due diligence. Comeau v. Rupp, 810 F.Supp. 1172, 1175 (D.Kan.1992); see Refrigeration Sales Co., Inc. v. Mitchell-Jackson, Inc., 605 F.Supp. 6, 7 (N.D.Ill.1983), aff'd, 770 F.2d 98 (7th Cir.1985). A motion to reconsider is not appropriate if the movant only wants the court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. Comeau v. Rupp, 810 F.Supp. at 1175. If advanced for improper purposes, a motion to reconsider "`can waste judicial resources and obstruct the efficient administration of justice.'" Peoples Nat. Bank v. Purina Mills, Inc., 946 F.Supp. 889, 891 (D.Kan.1996) (quoting United States ex rel. Houck v. Folding Carton Administration Committee, 121 F.R.D. 69, 71 (N.D.Ill.1988)).
The defendant's motion to reconsider is without merit.1 In denying the motion to dismiss, the court treated it as a Rule 12(b)(6) motion and considered only the evidence and arguments presented there. This order and the ruling therein does not preclude the defendant from filing a subsequent motion for summary judgment with the same arguments but with additional evidence. "A second motion for summary judgment is proper after a prior motion is dismissed, if supported by new material." Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir.) (citations omitted), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979); see American Nurses' Ass'n v. State of Ill., 783 F.2d 716, 729 (7th Cir. 1986); Twin Laboratories Inc. v. Weider Health, 720 F.Supp. 31, 34 (S.D.N.Y.1989), aff'd, 900 F.2d 566 (2nd Cir.1990); Kenyatta v. Moore, 623 F.Supp. 220, 222 (D.Miss. 1985). The defendant is not prejudiced by the court's prior order denying its motion to dismiss. If the defendant actually presents additional material evidence to support its latest motion, the court will consider and decide the same without regard to its earlier ruling. Consequently, the court denies the defendant's motion to reconsider.
MOTION FOR SUMMARY JUDGMENT (Dk.75).
The defendant originally submitted a memorandum in violation of the court's rule on page limitations. This rule appears not only in the court's scheduling order (Dk.15) in this case but also in the Federal Practice Handbook 2d ed. for the United States District Court for the District of Kansas which are available from the clerk's office and also in Judge Crow's Civil Procedural Guidelines (rev.1/10/1997) which are found in the handbook or are separately available from the clerk's office or chambers. On dispositive motions, Judge Crow imposes page limitations and also requires the following:
B. Briefs and appendices may be produced by standard typographic printing or by any duplicating or copying process which produces a clear black image on white paper. Text produced by word processor or typewriter shall be no smaller than 12 point font with margins no smaller than one inch (1") and with double spacing between each line of text. Quotations in excess of three lines shall be indented. Footnotes shall be no smaller than 12 point font. Indented quotations and footnotes may be single spaced.
C. No attempt shall be made to circumvent the page limitations established by the court through the piecemeal filing of motions or by the filing of supplemental memoranda not advancing new authority.
Civil Procedural Guidelines I. Dispositive Motions. The defendant's current memorandum in support of its motion for summary judgment has side and bottom margins of less than one inch in violation of the above rules. Rather than striking this memorandum and requiring the defendant to make a third attempt at complying with these requirements, the court chooses only to admonish the defendant's counsel to review all applicable rules before filing another dispositive motion in this court.
The defendant advances numerous grounds for summary judgment but its discussion of the applicable law and relevant facts is lacking. Some arguments are so vague that the court is not quite sure what issue is before it. The court neither is inclined nor has the time at its disposal to properly address all matters that have been presented. For that reason, the court will limit its order only to those matters that frankly are worth discussing because they are case dispositive.
A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "[T]here are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).
The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the nonmovant must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to" the nonmovant's claim or position. Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). The nonmovant's burden is more than a simple showing of "some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; it requires "`present[ing] sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995) (quoting Bacchus Industries, Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991)). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmovant. Id. A party relying on only conclusory allegations cannot defeat a properly supported motion for summary judgment. White v. York Intern. Corp., 45...
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