Opinion
No. 00-MC-203-KHV
Filed May 1, 2000
PATRICK WESLEY MACCORMACK, for petitioner.
MEMORANDUM AND ORDER
This petition for leave to proceed with depositions prior to filing a lawsuit comes before the Court upon Petitioner's Motion to Amend Judgment (Doc. #6) filed April 25, 2000. On April 19, 2000, the Court denied Petitioner's original petition because the petition failed to meet the requirement set forth in Fed.R.Civ.P. 27: first, that the action Petitioner contemplates bringing would be cognizable in a court of the United States and second, that a substantial danger exists that the testimony sought to be preserved by deposition would otherwise become unavailable before the complaint could be filed. See In re Boland, 79 F.R.D. 665, 667 (D.D.C. 1978) (citations omitted.) Petitioner contends the Court's findings are erroneous because there are sufficient facts to support jurisdiction would be appropriate in this Court and because the verified petition was filed in an effort to perpetuate testimony.
"A Rule 59(e) motion to alter or amend judgment is essentially a motion for reconsideration." Grider v. Positive Safety Mfg. Co., 162 F.R.D. 361 (D.Kan. 1995) (citing Henry v. Office of Thrift Supervision, No. 92-4272, 1993 WL 545195, *1 (D.Kan. 1993), aff'd, 43 F.3d 507 (10th Cir. 1994); Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir. 1989)). "Reconsideration is proper when there has been a manifest error of law or fact, when new evidence has been discovered, or when there has been a change in the relevant law." Id. (citing All West Pet Supply Co. v. Hill's Pet Products Div., 847 F. Supp. 858, 860 (D.Kan. 1994). "A party cannot invoke Rule 59(e) to raise arguments or evidence that should have been raised in the first instance or to re-hash arguments previously considered and rejected by the court." Id. "Whether to grant or deny a motion to reconsider is committed to the Court's sound discretion." Id. (citing Henry, 1993 WL 545195, at *1; Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
Although Petitioner states his Motion to Amend Judgment is filed pursuant to Rule 52(b), it is Federal Rule of Civil Procedure 59(a) that authorizes the Court to amend a judgment.
In support of his argument that he has presented sufficient facts to establish that his prospective claim would be cognizable in a court of the United States and that a substantial danger exists the testimony sought to be preserved may become unavailable before the complaint is filed, Petitioner simply restates the facts asserted in his original petition. The Court's Memorandum and Order (Doc. #5) filed April 19, 2000, demonstrates that the Court adequately considered those facts in denying Petitioner's request. Petitioner's arguments merely rehash facts previously considered and rejected by the Court and is improper subject matter for a motion to reconsider. Likewise, Petitioner has not established that the Court's decision constitutes a manifest error of law.
Accordingly, it is ORDERED that Petitioner's Motion to Amend Judgment (Doc. #6) filed April 25, 2000 is hereby denied.
IT IS SO ORDERED.