Opinion
CIVIL ACTION No. 03-2041-CM
February 24, 2004
MEMORANDUM AND ORDER
On January 9, 2004, this court awarded plaintiff's $56,161.50 for attorneys' fees, $6,304.40 for expenses, and $1,202.50 for the preparation of the fee application, for a total of $63,668.40 (Doc. 62). The court, however, denied attorneys' fees in the amount of $32,265.00 for work performed by Rachel Ruben. This matter is before the court on plaintiff's' Motion for Reconsideration (Doc. 63).
A party may file a motion asking a judge to reconsider an order or decision. Pursuant to Local Rule 7.3, motions seeking reconsideration of non-dispositive orders shall 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." D. Kan. Rule 7.3(b).
Plaintiff's contend that the court should reconsider its disallowance of the billable time attributable to Ms. Ruben. plaintiff's contend that the outcome in Faltermeier, et al. v. Sultani, Case No. 02CV07830, was different than predicted by the court, that the facts of Kay v. Ehrler, 499 U.S. 432, 438 (1991) are not applicable, and that the court's ruling constitutes a windfall for the City of Shawnee.
Plaintiff's first argue that the court's decision erroneously assumed that the plaintiff's in Faltermeier received the relief they sought as a result of this court's May 22, 2003 preliminary injunction against the City. This court stated, "In other words, as soon as this court rendered the Ordinance unconstitutional, Ms. Ruben was entitled to the injunctive relief she sought in Faltermeier." plaintiff's now state that, although Judge McAnany adopted this court's reasoning regarding the unconstitutionality of the Ordinances in Faltermeier, Judge McAnany refused to issue an injunction against the defendant in that case. plaintiff's contend that Ms. Ruben's fees should therefore be allowed because the case at hand had no impact on the relief obtained by the plaintiff's in Faltermeier, since the plaintiff's in Faltermeier did not obtain the injunction they sought.
That fact, however, does not alter this court's conclusion that Faltermeier and the instant action are so closely related that Ms. Ruben was, in essence, acting pro se in the instant action. Ms. Ruben's time spent on this case directly affected the outcome in Faltermeier, because Judge McAnany declared the Ordinances unconstitutional based upon the decision rendered in this case, notwithstanding the fact that Judge McAnany declined to order all the relief requested by Ms. Ruben and her co-plaintiff's.
Plaintiff's next contend that Kay v. Ehrler, 499 U.S. 432, 438 (1991) is not applicable. plaintiff's erroneously contend that, "[s]ince defendants did not cite this case in its opposition, plaintiff's did not have the opportunity to advance the arguments made [in the present motion]." (Plaintiff's Memorandum in Support of plaintiff's' Motion for Reconsideration, at 1 n. 1). However, in Defendant's Memorandum in Opposition to plaintiff's' Fee Application, defendant argued that Ms. Ruben's participation was akin to an attorney acting pro se, then cited Kay v. Ehrler for the proposition that attorneys appearing pro se are not entitled to attorneys' fees under 42 U.S.C. § 1988. (Defendant's Memorandum in Opposition to plaintiff's' Fee Application, at 3). plaintiff's had a full and fair opportunity to reply to this argument. Accordingly, plaintiff's' motion to reconsider on this basis revisits arguments previously raised and does not present one of the three grounds that must be present for reconsideration.
Plaintiff's also had a full and fair opportunity to argue that a denial of Ms. Ruben's fees would constitute a windfall for the City. A motion for reconsideration 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. As such, the court finds no basis upon which to reconsider its previous ruling.
IT IS THEREFORE ORDERED that plaintiff's' Motion for Reconsideration (Doc. 63) is denied.