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Chen v. Dillard Store Services, Inc.

United States District Court, Tenth Circuit

January 10, 2014

IVAN CHEN, Plaintiff,
v.
DILLARD STORE SERVICES, INC., Defendant.

MEMORANDUM AND ORDER

CARLOS MURGUIA United States District Judge

This matter is before the court on plaintiff Ivan Chen’s motion for reconsideration (Doc. 30) and motion to alter judgment (Doc. 32). For the reasons below, the court denies both motions.

I. Background

Plaintiff has filed several lawsuits in state and federal court related to his employment with and termination from defendant Dillard Store Services, Inc.’s store. On September 19, 2012, this court consolidated two related cases, stayed all proceedings, and ordered the parties to proceed to arbitration. Before the arbitration opinion issued, plaintiff filed the instant case in the District Court of Johnson County, Kansas, on June 20, 2013. Defendant removed this case on July 18, 2013. On July 26, 2013, the court stayed this case pending the arbitrator’s decision regarding the consolidated cases. Despite the imposition of the stay, plaintiff filed a motion to remand to state court (Doc. 12) on July 31, 2013.

The arbitrator held an evidentiary hearing in the arbitration on July 1–2, 2013. Plaintiff and defendant submitted post-hearing briefs. On August 1, 2013, the arbitrator issued its Opinion and Final Award, denying all of plaintiff’s claims. The court lifted the stay in this case on August 5, 2013. That same day, defendant filed its second motion to dismiss. On October 16, 2013, the court issued an order denying plaintiff’s motion to remand (Doc. 27). And on October 17, 2013, the court issued an order granting defendant’s second motion to dismiss (Doc. 28). Plaintiff then filed the now-pending motions. Defendant filed responses to both motions, and plaintiff did not file a reply to either motion.

II. Legal Standard

Under both Local Rule 7.3(b) and Federal Rule of Civil Procedure 59(e), there are three grounds that may justify reconsideration: (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.” Shinwari v. Raytheon Aircraft Co., 25 F.Supp.2d 1206, 1208 (D. Kan. 1998) (citation omitted). The decision whether to grant or deny a motion to reconsider is within the court’s sound discretion. In re Baseball Bat Antitrust Litig., 75 F.Supp.2d 1189, 1192 (D. Kan. 1999) (citing Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988)) (additional citation omitted).

“[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or the controlling law.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). However, “it is not appropriate to revisit issues already addressed or to advance arguments that could have been raised in prior briefing.” Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., 748 F.Supp.2d 1261, 1264 (D. Kan. 2010) (citation omitted). More importantly, a motion for reconsideration “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. 1994) (citation omitted).

III. Discussion

Motion for Reconsideration (Doc. 30)

In this motion, plaintiff asks the court to reconsider its October 16, 2013 order denying plaintiff’s motion to remand (Doc. 27). Plaintiff titled this motion as a “Motion to Reconsider.” (Doc. 30 at 1.) However, plaintiff cites Federal Rule of Civil Procedure 59(e) as the basis for his motion. An order denying a motion to remand is a non-dispositive order. Local Rule 7.3(b) governs a motion seeking reconsideration of a non-dispositive order. Conversely, Federal Rule of Civil Procedure 59(e) applies to dispositive orders. Thus, the proper authority under which plaintiff seeks relief is Local Rule 7.3(b).

Under Local Rule 7.3(b), a motion for reconsideration must be filed within fourteen days after the non-dispositive order is filed. The court issued its order denying plaintiff’s motion to remand on October 16, 2013. (Doc. 27). Plaintiff’s motion under this rule was therefore due October 30, 2013. Plaintiff’s motion filed on October 31, 2013, is untimely and can be denied on this basis. Cardozo v. Home Depot U.S.A., Inc., No. 10-2011-JWL, 2010 WL 4386908, at *1 (D. Kan. Oct. 29, 2010) (denying as untimely a motion for reconsideration filed one day after deadline by represented plaintiff); Goldwyn v. Donahoe, No. 12-4099-JTM, 2013 WL 5274249, at *2 (D. Kan. Sept. 17, 2013) (denying motion for reconsideration filed fifteen days late by pro se plaintiff).

However, even considering the merits of plaintiff’s motion, it still must be denied. Plaintiff’s motion for reconsideration does precisely what the cases above state it cannot do—it revisits issues already addressed, puts forth additional arguments that were formerly available, and attempts to make a stronger case by enhancing arguments that previously failed. See Coffeyville, 748 F.Supp.2d at 1264; Voelkel, 846 F.Supp. at 1483. After carefully reviewing plaintiff’s motion, the court finds no grounds that warrant reconsideration. Plaintiff’s motion contains no intervening change in controlling law and no new evidence. Plaintiff’s motion arguably invokes the third requirement of the need to correct clear error or prevent manifest injustice. Plaintiff essentially argues that the court was not mindful of plaintiff’s pro se status. But the court was, in fact, mindful of plaintiff’s pro se status: the court acknowledged it in a footnote (Doc. 27 at 1) and considered plaintiff’s motion with this fact in mind. The court finds no manifest injustice in its acknowledgment of plaintiff’s pro se status or in the way it handled plaintiff’s case.

Plaintiff also states that he may have misused the term “conservative estimate” and that he attached his damages exhibit to his petition simply to indicate that his lawsuit is not frivolous. And plaintiff even states that he does not agree with the damage amounts listed in the exhibit that he provided. But plaintiff again rehashes arguments made in previous briefing. Plaintiff acknowledges that he “made his point clear in his Reply to Defendant’s Memorandum in Opposition to Plaintiff’s Motion to Remand, but the Court was not mindful in considering his reasoning.” (Doc. 31 at 2.) In its order, the court considered the evidence before it—including plaintiff’s “conservative estimate” and ...


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