Opinion
No. 99-1301-WEB.
January 29, 2002
Memorandum and Order
This matter is before the court on plaintiff's motion to alter or amend the judgment. Doc. 119. The defendants have filed their response and plaintiff has filed a reply. The court finds oral argument would not assist in deciding the issues presented. For the reasons set forth herein, the court finds the motion should be denied.
The court rejects defendants' argument that the motion to alter the judgment was filed out of time. In so arguing, defendants overlook the fact that the judgment was not entered on the docket until November 15, 2001. See Fed.R.Civ.P. 79(a). Rule 59(e) provides that a motion to alter the judgment shall be filed no later than ten days after entry of the judgment. Because intervening weekends and holidays are excluded from this ten-day period (Rule 6(a)), plaintiff's motion was due by November 30, 2001, the date on which it was in fact filed.
Plaintiff argues the judgment should be vacated for two reasons. First, plaintiff believes the court acted as the trier of fact in holding as a matter of law that the school district's response to the alleged harassment in this case was not "clearly unreasonable." Plaintiff says that "once the court concluded that perhaps the school's response was not ideal or that reasonable persons could differ as to how the matters complained of by the plaintiff should have been handled, . . . the Court was required to allow the trier of fact to make the ultimate decision in the case." Second, plaintiff argues the court misapplied the rules of summary judgment and inappropriately required plaintiff "to prove her case." Plaintiff says she could not have anticipated the court would do this and, as a result, plaintiff has now supplied an additional affidavit from her mother containing more extensive allegations about the school district's response.
Plaintiff's view that a determination of whether the school district's response was "clearly unreasonable" necessarily presents a jury question was argued by the dissenting justices in Davis v. Monroe County Bd. of Education, 526 U.S. 629 (1999). The dissenters asserted that "[a] reasonableness standard, regardless of the modifier, transforms every disciplinary decision into a jury question." Id. at 679. The majority opinion rejected this view, stressing the limited standard of liability it was adopting (see id. at 648-49) and making clear that "[i]n an appropriate case, there is no reason why courts, on a motion for summary judgment, or for a directed verdict, could not identify a response as not `clearly unreasonable' as a matter of law." Id. at 649. Based on the facts set forth by the parties on summary judgment, the court determined that this was an appropriate case for judgment as a matter of law. The court will not re-hash the reasons for this holding, except to reiterate its view that under the Davis standard it cannot reasonably be said that the school district was deliberately indifferent to the alleged harassment. Cf. Davis, 526 U.S. at 649 (school district "failed to respond in any way" to the complaints of harassment).
The court must likewise reject plaintiff's argument that the court erroneously construed controverted facts in favor of the defendant. Plaintiff cites no specific inferences or facts relied upon by the court to show that the rules of summary judgment were misapplied. The court can only say that it did the best it could, given the record before it, in applying the standards of Rule 56 in light of the governing law. Under those standards, once the defendant properly raised an assertion that the elements of plaintiff's claim were not supported by the record, the burden was on the plaintiff to set forth specific facts showing that there was a genuine issue for trial. In the court's view, plaintiff failed to make such a showing under the standard of liability adopted in Davis.
The court previously noted the exceptional difficulty it had in this case in compiling a coherent statement of facts from the parties' briefs.
Finally, plaintiff asks the court to vacate the judgment based on a new 23-page affidavit from plaintiff's mother. This affidavit, which was attached to plaintiff's motion to alter or amend the judgment, contains some allegations that were not contained in plaintiff's response to the motion for summary judgment. Although plaintiff claims this evidence was "unavailable" (ostensibly due to the fact that plaintiff's mother's deposition testimony had not been not transcribed), she fails to show any reason why she could not have obtained such an affidavit in a timely fashion. If this affidavit were to be considered by the court at this point, it would essentially restart the summary judgment process. Under the circumstances, where plaintiff has not shown any reasonable justification for having failed to present this affidavit in the first instance, the court concludes that the affidavit is untimely and should not be considered. See All West Pet Supply Co. v. Hill's Pet Prods. 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).
Conclusion.
Plaintiff's Motion to Alter or Amend the Judgment (Doc. 119) is hereby DENIED. IT IS SO ORDERED this day of January, 2002, at Wichita, Ks.