Opinion
No. 02-4042-SAC.
December 30, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendants' motion to reconsider (Dk. 85) the court's order filed September 25, 2003, (Dk. 82) which granted in part and denied in part the defendants' motion for partial summary judgment. The defendants contend the court's findings and reasoning in its prior order "cast serious doubt" on the legal merit of some of the plaintiff's remaining legal theories. The defendants also refer to a summary judgment order entered in November of 2004 in the case of Dodson International Parts, Inc. v. Mansfield Heliflight, Inc., et al., No. 00-4134-SAC, and argue the theories and factual patterns involved in that case and decided by summary judgment are remarkably similar to the instant case and are cause for reconsidering the court's denial of summary judgment here. The defendants maintain summary judgment on several of the plaintiff's remaining claims is appropriate and would assist the parties in narrowing the issues for trial and reducing the risk of jury confusion.
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). The defendants' motion to reconsider is subject to D. Kan. Rule 7.3(b) which requires such motions to be "filed within ten days after the filing of the order unless the time is extended by the court" and to be "based on (1) an intervening change in controlling law, (2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice." 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. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D. Kan.), aff'd, 43 F.3d 1484 (10th Cir. 1994). Nor is it "appropriate to revisit issues already addressed or to advance arguments that could have been raised in prior briefing." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted)." "A motion for reconsideration is not, however, an opportunity for the losing party to raise new arguments that could have been presented originally." Matosantos Commercial Corp. v. Applebee's Intern., Inc., 245 F.3d 1203, 1209 n. 2 (10th Cir. 2001) (citations omitted). 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).
Under Rule 7.3(b), a motion seeking reconsideration of a non-dispositive order must be filed within ten days of the court's order unless the court extends the time for filing. The defendants filed their motion to reconsider more than a year after the court filed its prior order, and the defendants have not sought an extension of time for filing their motion nor offered viable grounds for obtaining an extension. The court denies the defendants' motion as untimely. See Welch v. Centex Home Equity Co., L.L.C., 224 F.R.D. 490, 493 (D. Kan. 2004). Even assuming the motion to reconsider had been timely filed, the court would deny it as inappropriate. The defendants couch their motion on new arguments and additional facts that could have been raised in their original motion for summary judgment. The court will not permit the defendants to take another crack at hitting a summary judgment home run with the trial scheduled to commence next month. Finally, the court is not persuaded that the defendants' latest arguments for summary judgment would be successful in narrowing the claims or issues for trial.
IT IS THEREFORE ORDERED that the defendants' motion to reconsider (Dk. 85) the court's order filed September 25, 2003, (Dk. 82) is denied.