Opinion
Case No. 01-2336-JWL.
May 15, 2002
MEMORANDUM ORDER
This case arises out of an automobile accident. Plaintiff alleges that he sustained injuries when the car that he was driving was struck by a car driven by defendant Anthony J. Welch, an employee of defendant American Drug Stores, Inc. d/b/a Osco Drug (hereinafter Osco). In his complaint, plaintiff alleges that defendant Welch was acting within the scope of his employment at the time of the accident such that defendant Osco would be liable for damages to plaintiff under a theory of respondeat superior.
On March 21, 2002, this court issued an order dismissing plaintiff's complaint against Osco on the grounds that defendant Welch, as a matter of law, was not acting within the course and scope of his employment at the time of the accident. Plaintiff now seeks reconsideration of that order or, in the alternative, requests the court certify to the Kansas Supreme Court the question of "whether an employer can be held vicariously liable for the torts of its employee who, while driving on company business, causes an accident while turning from his route to obtain non-emergency vehicle services." The motion is denied.
The court begins by addressing the relevant standard applicable to plaintiff's motion. Although plaintiff, in keeping with standard practice, has labeled his motion as a "motion to reconsider," the Federal Rules of Civil Procedure do not provide a mechanism pursuant to which a party may file a "motion to reconsider." United States v. Emmons, 107 F.3d 762, 764 (10th Cir. 1997) (quoting Hatfield v. Board of County Comm'rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995)). Instead, the court construes such a filing as either a Rule 59(e) motion or a Rule 60(b) motion, depending upon the timing of the filing of the motion. Id. A motion to reconsider filed within ten days after entry of judgment is considered a Rule 59(e) motion. Servants of Paraclete v. Does, 204 F.3d 1005,1012 (10th Cir. 2000). Grounds warranting relief under Rule 59(e) include an intervening change in the controlling law; new evidence previously unavailable; and the need to correct clear error or prevent manifest injustice. Id. (citing Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)). Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. Id.
The local rules for the District of Kansas permit the filing of a motion to reconsider only with respect to non-dispositive orders. See D. Kan. R. 7.3.
Plaintiff does not contend that the court misapprehended the facts, his position, or the controlling law. In fact, plaintiff concedes that there are no analogous Kansas tort cases addressing the precise issue raised by defendant Osco's motion for summary judgment. He suggests only that the court should have relied on Kansas workers' compensation cases (an argument that the court considered and rejected in its order granting summary judgment to Osco) instead of cases from "foreign jurisdictions." This argument is not an appropriate basis for relief under Rule 59(e).
The primary thrust of plaintiff's motion appears to be his request for certification to the Kansas Supreme Court-a request that plaintiff did not make in response to defendant Osco's motion for summary judgment and that he makes for the first time on reconsideration. As plaintiff acknowledges, however, courts "generally will not certify questions to a state supreme court when the requesting party seeks certification only after having received an adverse decision." See Enfield ex rel. Enfield v. A.B. Chance Co., 228 F.3d 1245, 1255 (10th Cir. 2000) (quoting Massengale v. Oklahoma Bd. of Examiners in Optometry, 30 F.3d 1325, 1331 (10th Cir. 1994)); accord Beam v. Concord Hospitality, Inc., No. 93-4188-SAC, 1995 WL 408436, at *2-3 (D.Kan. May 3, 1995) (denying plaintiff's request for certification where, inter alia, the request was made only after the court granted summary judgment on plaintiff's claim); Shrout v. CompUSA, Inc., No. 92-2345-KHV, 1994 WL 171833, at *2 (D.Kan. Apr. 27, 1994) (overruling plaintiff's motion to certify where plaintiff sought certification for the first time after the court's adverse summary judgment ruling). In fact, the Tenth Circuit has recognized that a party's decision to seek certification only after receiving an adverse ruling, standing alone, is a sufficient reason to deny the request. See Enfield, 228 F.3d at 1255. Moreover, even where the court believes that the legal question at issue is novel and that the applicable state law is unsettled, certification is never compelled. Id. ("Under the diversity statutes the federal courts have the duty to decide questions of state law even if difficult or uncertain.") (citations omitted). The issue here is one which is well within the ability of the federal courts to predict the position Kansas state courts would adopt should the issue ever be presented to them. For these reasons, plaintiff's request for certification is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to reconsider or, in the alternative, to certify to the Kansas Supreme Court the questions of defendant Osco's vicarious liability (doc. #59) is denied.
IT IS SO ORDERED.