Opinion
Civil Action No. 99-2517-CM
November 1, 2000
MEMORANDUM AND ORDER
Plaintiff Reverend Nolan McKenzie appears pro se in this matter. Plaintiff sued defendant MCI Worldcom, Inc. for defamation, consumer discrimination, and false representation. This matter is before the court on plaintiff's motion to overrule order (Doc. 30), plaintiff's motion to strike defendant's opposition to plaintiff's motion for summary judgment (Doc. 32), and plaintiff's motion for summary judgment (Doc. 24).
The court notes that some of the pleadings filed in this case, including those at issue in this order, contain rhetoric which the court considers unprofessional. The court reminds the parties that, whether represented by counsel or appearing pro se, each is bound by the Federal Rules of Civil Procedure. Accordingly, the court expects the parties to present their pleadings in a professional and dignified manner. Pleadings which contain disparaging or derogatory remarks without a basis in fact, especially those directed towards the court, are disfavored, and the parties should refrain from such conduct.
Plaintiff filed his petition in the District Court of Johnson County, Kansas in October 1999. Defendant subsequently removed the action to federal court on November 15, 1999. Plaintiff filed a motion for summary judgment on August 17, 2000, to which defendant responded. Plaintiff then filed a motion to strike defendant's response. Thereafter, on August 29, 2000, the court granted defendant's motion for more definite statement and ordered that plaintiff cure the pleading defects outlined therein within ten days after notice of the order. (Mem. and Order, August 29, 2000 at 7). Plaintiff did not, however, comply with the court's order. Instead, plaintiff filed a "Motion to Overrule Order Memorandum in Support Thereof."
I. Motion to Overrule Order
Plaintiff moves this court to overrule its order dated August 29, 2000, wherein the court granted defendant's motion for a more definite statement. The court construes plaintiff's motion to overrule as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e). A motion to alter or amend judgment may be granted only if the moving party can establish: (1) an intervening change in controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. See Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995). Such a motion does not permit a losing party to rehash arguments previously addressed or to present new legal theories or facts that could have been raised earlier. See Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996).
Defendant construed plaintiff's motion to overrule as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). However, if a motion requesting reconsideration of a judgment is filed within ten days of the entry of judgment, the motion is treated as a motion to alter or amend the judgment under Rule 59(e). Alternatively, if the motion is filed more than ten days after the entry of judgment, it is considered a motion seeking relief from the judgment under Rule 60(b). See United States v. Emmons, 107 F.3d 762, 764 (10th Cir. 1997). In this case, plaintiff filed his motion within ten days of the court's order.
Plaintiff argues that the court should overrule its order because defendant failed to file accompanying affidavits in support of its motion for a more definite statement. Foremost, plaintiff already raised this argument in his response to defendant's motion for a more definite statement and, as such, plaintiff's argument has been previously considered by the court. In any event, defendant was not required under the Federal Rules of Civil Procedure to file affidavits in support of its motion for a more definite statement.
Plaintiff also contends that the court should overrule its order because the court ruled on the parties' motions without first conducting a hearing. Pursuant to this court's local rules, hearings on motions are granted "at the discretion of the court." D. Kan. Rule 7.2. Furthermore, plaintiff never requested a hearing. Rather, defendant requested such a hearing by motion, to which plaintiff responded by sending a letter to defendant stating that he had not requested any hearing and insisting that defendant "quash" the motion for hearing. Plaintiff cannot now claim error as a result of the court's denial of a hearing.
The court ruled on various motions in its August 29, 2000 order, including defendant's motion for a more definite statement, plaintiff's motion to strike defendant's pleading, plaintiff's motion for directed verdict, plaintiff's two motions to amend amended petition, and plaintiff's motion to amend pleading.
Plaintiff fails in his motion to establish any of the elements required to alter or amend the court's order. As such, plaintiff's motion is denied. Plaintiff must within ten days after notice of this order cure the pleading defects outlined in the court's order of August 29, 2000. Should plaintiff fail to timely amend his complaint accordingly, the court will strike plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(e) and dismiss plaintiff's cause of action.
II. Motion to Strike
Plaintiff filed a motion for summary judgment, to which defendant timely responded by filing a memorandum in opposition to plaintiff's motion for summary judgment. Plaintiff now moves this court to strike defendant's responsive pleading. Plaintiff contends that defendant has "suppressed" evidence in filing its "frivolous" responsive pleading and that the pleading is improperly prepared because defendant must do more than simply controvert the facts as set forth by plaintiff.
Plaintiff offers no basis under the Federal Rules of Civil Procedure or under the local rules of this court to strike defendant's pleading. Further, plaintiff has failed to make any showing that defendant suppressed evidence, and, even if plaintiff had made such a showing, striking defendant's responsive pleading would not be the proper remedy. Defendant's response to plaintiff's summary judgment motion was timely and appropriate. Accordingly, plaintiff's motion to strike is denied.
III. Motion for Summary Judgment
Plaintiff filed a motion for summary judgment on August 17, 2000, prior to the court's order issued on August 29, 2000. While the arguments upon which plaintiff bases his summary judgment motion are not entirely clear, plaintiff is apparently contending that he has established all the elements required to prevail on his complaint.
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact"and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Foremost, plaintiff has failed to comply with D. Kan. Rule 56.1, which requires a moving party to "refer with particularity to those portions of the record upon which movant relies." In his motion, plaintiff failed to cite to any portion of the record and, indeed, failed to include a record at all, which is also in violation of this court's local rules. See D. Kan. Rule 56.1 ("All facts on which a motion or opposition is based shall be presented by affidavit, declaration under penalty of perjury, and/or relevant portions of pleadings, depositions, answers to interrogatories and responses to requests for admissions."). Moreover, plaintiff states no legal basis upon which the court could enter judgment on any of his substantive claims. Plaintiff asserts that he has "established the existence of defamation, discrimination, contract, and others." However, the court has ruled that plaintiff's claims of defamation, discrimination, and breach of contract are not sufficiently definite to enable defendant to respond. In fact, defendant is not required to respond until plaintiff complies with the court's order and amends his complaint. The court cannot determine that no genuine issue of fact remains when defendant has not yet had the opportunity to answer plaintiff's claims. Plaintiff has failed to establish that he is entitled to judgment as a matter of law. Therefore, plaintiff's motion for summary judgment is denied.
IT IS THEREFORE ORDERED that plaintiff's motion to overrule order (Doc. 30) is denied, plaintiff's motion to strike defendant's opposition to plaintiff's motion for summary judgment (Doc. 32) is denied, and plaintiff's motion for summary judgment (Doc. 24) is denied.
Dated this day of November 2000 at Kansas City, Kansas.