Opinion
Case No. 02-4074-JAR
November 13, 2002
MEMORANDUM AND ORDER DENYING MOTION TO VACATE ORDER TO REMAND
On November 8, 2002, Defendant filed a motion to vacate (Doc. 16) the Court's November 1, 2002 Memorandum and Order Granting Plaintiff's Motion to Remand (Doc. 15). For the reasons stated below, the Court denies the Motion to Vacate Order to Remand.
While the Federal Rules of Civil Procedure do not recognize a motion to vacate, such a motion is construed as a Fed.R.Civ.P. 59(e) motion to alter or amend, if filed within ten days of entry of judgment; or it is construed as a Fed.R.Civ.P. 60(b) motion for relief from judgment, if filed more than ten days after entry of judgment. Because this motion was filed less than 10 days after the judgment, the Court construes this motion as a Rule 59(e) motion.
Van Skiver v. U.S., 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied 506 U.S. 828 (1992).
Under Fed.R.Civ.P. 59(e), the court may alter or amend an order or judgment, on one of three recognized grounds: an intervening change in controlling law, availability of new evidence previously unavailable, or the need to correct clear error or prevent manifest injustice.
See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Butler v. Boeing Co., 175 F. Supp.2d 1307, 1308-1309 (D.Kan. 2001) (citing Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981); Burnett v. Western Resources, Inc., 929 F. Supp. 1349, 1360 (D.Kan. 1996)). See also D. Kan. R. 7.3(b).
Defendant's motion is not based on any of these grounds. Defendant removed this case from state court, and as the party requesting removal, Defendant had the burden of proving that this Court has jurisdiction. It is undisputed that Plaintiff is a citizen of Kansas. Plaintiff contends that Kansas Gas Service Co. is a Kansas corporation, thus also a citizen of Kansas. Plaintiff supported this assertion with documentation showing that a company by the name Kansas Gas Service Company is incorporated in the State of Kansas and is in good standing.
Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied 516 U.S. 863 (1995).
In its response to Plaintiff's motion to remand, Defendant asserted that the named defendant is not the same entity as the Kansas corporation named Kansas Gas Service Co. Rather, the named defendant is an unincorporated division of Oneok, Inc., an Oklahoma corporation. Defendant failed to support this assertion with any documentation.
Having failed its burden of proof, Defendant now attempts to satisfy its burden in this motion to vacate. Defendant attaches to its motion to vacate the Affidavit of Sue Griffin, the Assistant Secretary of Oneok, Inc. and the Assistant Secretary of Kansas Gas Service Company. Ms. Griffin states that Oneok, Inc. is an Oklahoma corporation that does business in Kansas as "Kansas Gas Service, a division of Oneok, Inc." Ms. Griffin further states that "Kansas Gas Service Company" is a Kansas corporation that licenses the name "Kansas Gas Service" to Oneok, Inc., but does not otherwise engage in business activity in Kansas. Ms. Griffin states that Plaintiff contracted with Oneok, Inc. to buy gas, which is the subject of this lawsuit; and that Plaintiff did not contract with Kansas Gas Service Company.
Defendant improperly attempts to satisfy its burden of proof with this affidavit of Ms. Griffin. Nothing prevented Defendant from submitting such proof in its response to Plaintiff's motion to remand. Because she is an officer of both Oneok, Inc. and Kansas Gas Service Company, Ms. Griffin's affidavit was readily available to Defendant at the time it responded to the motion to remand. Rule 59(e) was not designed to give relief to litigants who fail to satisfy their burden of proof, when they had such proof available to them but failed to submit it to the court for consideration. A motion under Rule 59(e) does not provide the movant a second opportunity to restate, clarify, improve, or rehash arguments that previously failed. Moreover, all that Defendant's tardy submission demonstrates is that the Defendant and Plaintiff dispute who the real party in interest is. As the Court noted in its order granting remand, any doubts concerning the propriety of removal, must be resolved in favor of remand.
See Servants of Paraclete, 204 F.3d at 1012 (citing Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991)).
J.W. Petroleum, Inc. v. Lange, 787 F. Supp. 975, 977 (D.Kan. 1992).
IT IS THEREFORE ORDERED that Defendant's Motion to Vacate Order to Remand (Doc. 16) is DENIED.
IT IS SO ORDERED.