Opinion
No. 04-4014-SAC.
December 9, 2004
MEMORANDUM AND ORDER
The case comes before the court on the plaintiff's motion to reconsider the court's prior order that dismissed this case without prejudice because the plaintiff's filings did not offer good cause for the plaintiff's failure to prosecute the action in compliance with the Federal Rules of Civil Procedure. (Dk. 10). The plaintiff represents that he is prepared to secure service as he resides at his United States address until January 7, 2005.
A motion to reconsider must "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 motion to reconsider is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed." Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484 (10th Cir. Dec. 21, 1994) (Table). The decision whether to grant or deny a motion to reconsider is committed to the court's sound discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988). The plaintiff's motion fails to offer any basis for the court to reconsider its prior order of dismissal. The plaintiff's employment outside of the United States obviously complicated the plaintiff's efforts in prosecuting this action, but this circumstance is not cause for suspending the federal rules. Despite more than sufficient time to complete proper service, the plaintiff failed to comply, and no persuasive reasons exist for giving the plaintiff another chance.
In its prior order, the court questioned whether it had subject matter jurisdiction of the case even assuming the plaintiff had accomplished proper service of a summons and complaint. In the plaintiff's proposed summons attached to his motion to reconsider, the plaintiff alleges for the first time that the court has jurisdiction under 28 U.S.C. § 1361. The plaintiff's latest effort to find a jurisdictional basis for his case is no more availing than his prior pleadings.
A federal district court has jurisdiction of a mandamus action under 28 U.S.C. § 1361 "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Section 1361 provides a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendants owe him a clear nondiscretionary duty. Hecker v. Ringer, 466 U.S. 602, 616-17 (1984). "[T]he remedy of mandamus is a drastic one, to be invoked only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) (citations omitted). To grant mandamus relief, a court must find (1) that the plaintiff has a clear right to the relief sought, (2) that the defendants have a plainly defined and peremptory duty to do the action in question, and (3) that no other adequate remedy is available. Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir. 1988). The plaintiff's complaint fails to allege these required elements for mandamus relief, and the plaintiff is unlikely to allege a viable mandamus action from the facts appearing in his other pleadings. See Borntrager v. Stevens, 772 F.2d 419, 420 (8th Cir.) (Supreme Court offers a remedy through its inherent power over its clerks to compel their performance of duties), cert. denied, 474 U.S. 1008 (1985); Panko v. Rodak, 606 F.2d 168, 170-71 (7th Cir. 1979) (plaintiff failed to allege a clear right to have his papers filed or a plain duty on the clerks to file pleadings, and "it seems axiomatic that a lower court may not order the judges or officers of a higher court to take an action."), cert. denied, 444 U.S. 1081 (1980); Coombs v. Staff Attorneys of Third Circuit, 168 F. Supp. 2d 432, 435 (E.D. Pa. 2001) ("review of actions of officers or employees of a court of appeals by a district judge [in a mandamus action] presents serious jurisdictional and practical problems."); Sup. Ct. R. 22 (Requires the Clerk to transmit an application only when "an individual Justice has authority to grant the sought relief.").
IT IS THEREFORE ORDERED that the plaintiff's motion to reconsider (Dk. 10) is denied.