Opinion
Case No. 03-4202-JAR
March 11, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
This matter comes before the Court on plaintiff Daniel Hamrick's "Motion to Reconsider Decision on Summary Judgment against Defendant Sandy Praeger and to Proceed with Grant of Summary Judgment Against Defendants." (Doc. 50). For the reasons set forth below, plaintiff's motion is denied.
Background
On December 19, 2003, defendant Sandy Praeger filed a Motion to Dismiss (Doc. 24) plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), due to lack of federal jurisdiction and failure to state a claim upon which relief may be granted. Defendants Paula Greathouse, Kenneth Hursh and Farmers Alliance Mutual Insurance Co. have filed similar motions (Docs. 16 and 21). Plaintiff filed a Motion to Amend Complaint (Doc. 35), followed by a Motion for Summary Judgment (Doc. 36), which Praeger moved to quash as premature (Doc. 38).
On February 25, 2004, Praeger moved for an extension of time (Doc. 44) to respond to plaintiff's motion for summary judgment until after a ruling on the pending motions to dismiss. An order denying the motion was mistakenly entered by Magistrate Judge Sebelius on February 27, 2004 (Doc. 45), and was subsequently vacated (Doc. 46). This Court granted Praeger's motion (Doc. 47), extending time to respond to Plaintiff's motion for summary judgment until 21 days from the date the Court rules on defendant's pending motion to dismiss. Plaintiff's motion for reconsideration (Doc. 50) followed.
Discussion
A motion to reconsider filed within ten days of the entry of final judgment is treated as a motion to alter or amend pursuant to Fed.R.Civ.P. 59(e). A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the moving party can establish: (1) an intervening change in the 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. 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 Van Skiver v. United States, 952 F.2d 1241 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992).
Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995).
Brown v. Presbyterian Healthcare Services, 101 F.3d 1324, 1332 (10th Cir. 1996), cert. denied 520 U.S. 1181 (1997).
Plaintiff argues that the Court's order granting defendant additional time to respond to his motion for summary judgment was filed after the deadline for defendant to respond and that his motion should be granted by default. Plaintiff's motion was served on defendant by regular mail on February 4, 2004, since plaintiff is pro se and cannot file his pleadings electronically. Fed.R.Civ.P. 6(e) provides that whenever service is by mail, 3 days shall be added to the prescribed period. A party shall have 20 days to respond to a motion for summary judgment. Thus, defendant had until February 27, 2004, to respond to plaintiff's motion for summary judgment, making both his motion for extension of time and the subsequent order timely.
D. Kan. Rule CR49.2.
D. Kan. Rule 6.1(e)(2)
It appears that plaintiff misconstrues the purpose of the Court's order granting defendant additional time to respond to the summary judgment motion. Defendants have filed motions to dismiss plaintiff's complaint for lack of subject matter jurisdiction that remain pending before this Court. Subject matter jurisdiction is a threshold determination that must be made prior to determination of the merits of plaintiff's claims. Thus, it is in the interest of judicial economy to defer briefing and determination of plaintiff's summary judgment motion until such time as the Court determines the jurisdictional issue raised in the motions to dismiss. If the Court should decide the motions to dismiss in plaintiff's favor, defendant's response time to plaintiff's motion for summary judgment will be 21 days from the date of that ruling. Extending defendant's time to respond to plaintiff's motion for summary judgment is not a ruling on the merits of that motion.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff's Motion for Reconsideration (Doc. 50) is DENIED.
IT IS SO ORDERED.