United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
Hadley originally asserted medical malpractice claims against
Hays Medical Center (“HMC”), Curt Meinecke, M.D.,
Kenneth Koerner, D.C., Koerner Chiropractic, P.A., Troy
Kerby, M.D., Michael Pfannenstiel, M.D. and Valerie Eckard,
M.D. See Complaint (Doc. #1) filed February 20,
2014. On November 21, 2016, the Court dismissed
plaintiff's only remaining claims, i.e. the
state law claims against Koerner, for lack of subject matter
jurisdiction. See Order (Doc. #178).
Specifically, under 28 U.S.C. § 1367(c), the Court
declined to exercise supplemental jurisdiction over the
claims. See id. at 2-4. The same day, the Court
entered judgment dismissing the claims against Koerner
without prejudice. See Judgment In A Civil Case
(Doc. #179). This matter comes before the Court on
Plaintiff's Corrected* [sic] Motion For Alteration Or
Amendment Of Judgment And/Or For Relief From Judgment Of
Dismissal For Lack Of Subject Matter Jurisdiction (Doc.
#181) filed December 19, 2016.
asks the Court to alter or amend its judgment under Rule
59(e), Fed.R.Civ.P. Under Rule 59(e), the Court has
discretion to reconsider a final decision if the moving party
can establish (1) an intervening change in the controlling
law; (2) the availability of new evidence that could not have
been obtained previously through the exercise of due
diligence; or (3) the need to correct clear error or prevent
manifest injustice. Servants of Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). Such a motion is
appropriate when the Court has misapprehended a party's
position, the facts or the controlling law, or the Court has
“mistakenly decided issues outside of those the parties
presented for determination.” In re Sunflower
Racing, Inc., 223 B.R. 222, 223 (D. Kan. 1998) (citing
Anderson v. United Auto Workers, 738 F.Supp. 441,
442 (D. Kan. 1990)). Rule 59(e) 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. Brown v. Presbyterian Healthcare Servs.,
101 F.3d 1324, 1332 (10th Cir. 1996); Servants of
Paraclete, 204 F.3d at 1012. A party's failure to
present her strongest case in the first instance does not
entitle her to a second chance in the form of a motion to
reconsider. Cline v. S. Star Cent. Gas Pipeline,
Inc., 370 F.Supp.2d 1130, 1132 (D. Kan. 2005). Whether
to grant a motion for reconsideration is committed to the
court's discretion. See Hancock v. City of Okla.
City, 857 F.2d 1394, 1395 (10th Cir. 1988).
asserts that the order which dismissed her claims against
Koerner will result in manifest injustice. Although the Tenth
Circuit has not precisely defined “manifest
injustice” within the context of Rule 59(e), this Court
has described the term to mean “direct, obvious, and
observable error.” Tri-State Truck Ins., Ltd. V.
First Nat'l Bank of Wamego, No. 09-4158-SAC, 2011 WL
4691933, at *3 (D. Kan. Oct. 6, 2011) (quoting
Black's Law Dictionary 1048 (9th ed. 2009), and
citing Brynberg v. Ivanhoe Energy, Inc., No.
08-cv-2528, 2010 WL 2802649 (D. Colo. 2010)). Where plaintiff
seeks reconsideration to prevent manifest injustice, she can
prevail only if she demonstrates injustice that is
“indisputable.” Id. (quoting
Shirlington Limousine & Transp., Inc. v. United
States, 78 Fed.Cl. 27, 31 (2007)).
asserts that the order of dismissal will unnecessarily delay
trial and cause needless additional expense and burden on the
parties. See Plaintiff's Motion (Doc.
#181) at 2. Plaintiff urges the Court to retain jurisdiction
over the claims against Koerner, asserting that other judges
have chosen to do so in cases involving similar
circumstances. See id. at 2-6.
points to no reasons which compel the Court to exercise
supplemental jurisdiction to decide the merits of her state
law claims. See Thatcher Enters. v. Cache Cty.
Corp., 902 F.2d 1472, 1478 (10th Cir. 1990) (notions of
comity and federalism demand that state court try its own
lawsuits, absent compelling reasons to contrary). As the
Court previously noted, the state judge is better suited to
address state law questions raised in defendant's motion
for summary judgment, including whether plaintiff can prove
her claim for punitive damages by clear and convincing
evidence and whether plaintiff can prevail on her claim for
loss of chance for better recovery. See Order (Doc.
#178) at 2, 3 n.3 (citing Defendant Kenneth Koerner,
D.C.'s Memorandum In Support Of His Motion For Partial
Summary Judgment (Doc. #132) filed May 18, 2016).
Moreover, in light of the Court's order that (1) all
discovery in this case shall be available for use in state
court proceedings; and (2) immediately after defendant
receives service of any state court suit, he shall provide a
copy of the federal case file to the state judge and notify
the state judge that the case is ready for trial subject to
ruling on defendant's motion for partial summary
judgment, the Court is satisfied that any additional expense
or burden to the parties will be minimal. Under the
circumstances, the Court declines to reconsider its
THEREFORE ORDERED that Plaintiff's Corrected* [sic]
Motion For Alteration Or Amendment Of Judgment And/Or For
Relief From Judgment Of Dismissal For Lack Of Subject Matter
Jurisdiction (Doc. #181) filed December 19, 2016 be and
hereby is OVERRULED.
 Plaintiff agreed to dismiss her claims
against HMC, Pfannenstiel, Eckard, Kerby and Meinecke.
See Order Approving Fees And Dismissal With
Prejudice (Doc. #177) filed October 19, 2016;
Stipulation Of Partial Dismissal As To Defendant Valerie
Eckard, M.D. Only, Reserving All Rights Against Remaining
Defendants (Doc. #106) filed November 17, 2015;
Journal Entry Of Dismissal With Prejudice Of Defendant
Troy Kerby, M.D. (Doc. #104) filed November 3, 2015;
Journal Entry Of Dismissal With Prejudice Of Defendant
Curt Meinecke, M.D. (Doc. #88) filed September 1, 2015.
The Court dismissed the claims against Koerner Chiropractic,
P.A. See Memorandum And Order (Doc. #50) filed
October 31, 2014.
 Plaintiff does not elaborate how or
why the order will cause needless expense and burden on the
parties. Furthermore, it appears that plaintiff has merely
cut and pasted into her motion for reconsideration arguments
that counsel asserted in her memorandum in opposition to
defendant's motion to dismiss. Compare
Plaintiff's Response To Defendant Kenneth Koerner,
D.C.'s Motion To Dismiss (Doc. #167) filed September
21, 2016, ¶¶ 2-4, 7-17 with Plaintiff's
Motion (Doc. #181), ¶¶ 6-18. The Court has
already considered and rejected these arguments.
 Alternatively, plaintiff seeks relief
under Rule 60(b), Fed. R. Civ. P., which states as
On motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding for ...