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Cory v. City of Basehor

United States District Court, D. Kansas

November 7, 2014

JASON C. CORY, Plaintiff,
v.
THE CITY OF BASEHOR, ET AL., Defendants.

MEMORANDUM AND ORDER

J. THOMAS MARTEN, District Judge.

Before the court is plaintiff Jason C. Cory's Motion to Set Aside Summary Judgment pursuant to Federal Rule of Civil Procedure 59(e). The court will construe the motion under Rule 59(e) as a motion to alter or amend the judgment. Plaintiff argues that the court erred in granting summary judgment on four of his claims. The court denies the motion.

I. Background

Plaintiff filed a complaint in Leavenworth County District Court on July 5, 2012, against the City of Basehor, Kansas, Police Chief Lloyd Martley, Police Lieutenant Robert Pierce, the Basehor Police Department, and Basehor City Administrator Mark Loughry. Dkt. 1. The complaint alleged a variety of claims related to the termination of plaintiff's employment as a police officer for the City of Basehor. Defendants removed the case to federal court on August 21, 2012. Defendants Loughry and the Basehor Police Department were dismissed from the action on January 29, 2014. Dkt. 32.

The remaining defendants filed a Motion for Summary Judgment on all claims. Dkt. 33. Plaintiff's response failed to refute the facts asserted by defendants. Dkts. 34; 37. Having deemed such facts admitted, the court determined that no genuine issue of material fact existed and proceeded to consider the motion. Dkt. 51. The court granted judgment in favor of defendants on all claims. Dkt. 51. Judgment was entered on July 11, 2014, and plaintiff filed this Motion to Set Aside Summary Judgment on August 8, 2014. Dkts. 52; 53.

Plaintiff argues that the court erred in granting summary judgment on four claims: (1) Wrongful Termination, (2) Denial of Freedom of Free Speech, (3) Intentional Infliction of Emotional Distress, and (4) Qualified Immunity. Dkt. 53, 6-7. Plaintiff submitted two affidavits and other new exhibits in support of his arguments. Dkts. 54; 55; 56; 57. This evidence is best described as follows: an affidavit of plaintiff dated August 7, 2014, that explains the other exhibits now filed and provides additional testimony related to his claims (Dkt. 55); a collection of excerpts from plaintiff's depositions taken on June 11, 2013, October 23, 2013, and November 15, 2013 (Dkt. 56); Exhibits Q-AA (Dkt. 57); and an affidavit of Jana Goodman, who transcribed the audio recordings submitted as Exhibits Q-V and X (Dkt. 54).

Exhibits Q-V and X are transcripts of audio recorded on or before July 9, 2010. Dkt. 57, at 1-8, 12. The Goodman affidavit attests to the accuracy of those transcripts. Exhibit W is a memorandum from defendant Martley dated January 25, 2010. Dkt. 57, at 9-11. Exhibit Y is a letter from plaintiff's psychiatrist dated August 8, 2014, stating that plaintiff has been under her care since August 30, 2011. Dkt. 57, at 13. Exhibit Z is a medical expense summary from The Medicine Store pharmacy dated August 8, 2014, documenting plaintiff's prescription medication purchases since April 5, 2010. Dkt. 57, at 14-17. Exhibit AA documents prescription medication purchases from a Wal-Mart pharmacy between January 25, 2011, and July 7, 2014. Dkt. 57, at 18-19.

II. Analysis

A court may reconsider a judgment by altering or amending it upon motion of a party within twenty-eight days of the entry of the judgment. FED. R. CIV. P. 59(e). "The purpose of a Rule 59(e) motion is to correct manifest errors of law or to present newly discovered evidence." Monge v. FG Petro-Machinery (Group) Co. Ltd., 701 F.3d 598, 611 (10th Cir. 2012) (brackets and internal quotation and citation omitted). "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). "Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Id .; accord United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014). However, "[a] motion to reconsider should not be used to revisit issues already addressed or advance arguments that could have been raised earlier."[1] Christy, 739 F.3d at 539 (quoting Servants of Paraclete, 204 F.3d at 1012).

Plaintiff timely filed a Rule 59(e) motion but does not identify grounds on which the court should reconsider. He neither introduces nor argues any change in controlling law in this matter. Rather, plaintiff expresses only disagreement with the court's ruling, relying on law previously addressed in summary judgment. However, the court finds that plaintiff's submission of evidence and allegations of error implicitly raise the issues of: (1) new evidence, and (2) clear error or manifest injustice in granting summary judgment.

A. Consideration of New Evidence

A party moving for reconsideration under Rule 59 may introduce new evidence only upon a showing that the evidence was newly discovered or that counsel made diligent yet unsuccessful efforts to discover the evidence. Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1153 (10th Cir. 2012).

Plaintiff argues that newly submitted exhibits Q-Z, and AA demonstrate the court's error. However, this evidence existed prior to February 26, 2014, the date plaintiff filed his response to the motion for summary judgment. They are not newly discovered evidence.

Plaintiff's new affidavit contains two types of information: (1) a summary of the other exhibits contemporaneously filed, and (2) additional testimony that re-states old facts with a new perspective. Plaintiff could have provided all facts he now submits as new testimony prior to summary judgment. His only explanation is that he misunderstood the meaning of the word "offended" in the context of his claims against defendants.[2] Dkt. 55, at 3. Plaintiff now attempts to re-frame his answer on the same facts, but provides no newly discovered evidence. ...


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