United States District Court, D. Kansas
MARJORIE A. CREAMER, Plaintiff,
CHANTZ MARTIN, ET AL., Defendants.
MEMORANDUM AND ORDER DENYING MOTION FOR
D. Crabtree United States District Judge
plaintiff Marjorie A. Creamer has filed a motion
asking the court to reconsider its Order dismissing her
lawsuit. Doc. 11. On February 16, 2017, the court dismissed
plaintiff's case without prejudice for lack of subject
matter jurisdiction. Doc. 6. Before dismissing her suit, the
court ordered plaintiff to show cause why the court should
not dismiss her case for lack of subject matter jurisdiction.
Doc. 4. The court explained that plaintiff's Complaint
failed to allege subject matter jurisdiction under either 28
U.S.C. § 1331 (federal question jurisdiction) or 28
U.S.C. § 1332 (diversity jurisdiction). Id. at
2-3. The court liberally construed plaintiff's Complaint
as alleging legal malpractice claims. Id. at 3. And,
the court explained, plaintiff's legal malpractice claims
arise under state law, not federal law, even though she
attempts to invoke the Americans with Disabilities Act
(“ADA”). See Id. (citing Creamer v.
Gen. Motors, Nos. 16-4045-SAC, et al., 2016 WL
3197379, at *5 (D. Kan. May 18, 2016) (concluding that
plaintiff failed to allege federal question jurisdiction
because her citation to the ADA “has no plausible
application to plaintiff's claims that defendant
committed legal malpractice” and “absent
diversity of citizenship and an amount in controversy over
$75, 000-which do not exist here-plaintiff's state law
claims of legal malpractice, assuming of course they have any
merit, belong in state court”)).
submitted a response to the Show Cause Order. Doc. 5. But,
like her Complaint, her response failed to provide any
colorable basis for this court to invoke its limited subject
matter jurisdiction. Instead, plaintiff reiterated that she
was asserting legal malpractice claims against defendants.
Id. at 1-4. She provided no basis for the court to
exercise federal question or diversity jurisdiction. See
generally Id. So, the court dismissed her lawsuit
without prejudice for lack of subject matter jurisdiction.
Motion for Reconsideration invokes Fed.R.Civ.P. 59(e),
Fed.R.Civ.P. 60, and D. Kan. Rule 7.3. Plaintiff fails to
provide a basis for reconsideration under any of these
rules. Rule 59(e) allows a court to grant a
motion to alter or amend a judgment “only if the moving
party can establish (1) an intervening change in 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.” Wilkins v. Packerware
Corp., 238 F.R.D. 256, 263 (D. Kan. 2006),
aff'd 260 F. App'x 98 (10th Cir. 2008). Rule
60(b) permits a court to relieve a party from a final
judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud . . .
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged . . .; or (6) any other reason that
Fed. R. Civ. P. 60(b). But, relief under Rule 60(b) is
“extraordinary and may only be granted in exceptional
circumstances.” Bud Brooks Trucking, Inc. v. Bill
Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir.
1990) (citation omitted). And, D. Kan. Rule 7.3(b) has the
same requirements as a Rule 59(e) motion: “A motion to
reconsider must be based on: (1) an intervening change in
controlling law; (2) the availability of new evidence; or (3)
the need to correct clear error to prevent manifest
injustice.” D. Kan. Rule 7.3(b).
plaintiff provides no basis for the court to grant her motion
to reconsider. She does not cite (1) an intervening change in
the controlling law, (2) the availability of new evidence, or
(3) the need to correct clear error to prevent manifest
injustice to support reconsideration under Rule 59(e) or D.
Kan. Rule 7.3(b). Plaintiff also cites none of the Rule 60(b)
factors. Instead, plaintiff reasserts the same arguments to
support the court's purported subject matter
jurisdiction, ignoring the fact that the court already has
rejected her assertions as meritless. This is not a proper
basis for moving for reconsideration under any of the rules
plaintiff invokes. See Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (stating
that, on motion filed under Rule 59(e) or Rule 60,
“[i]t is not appropriate to revisit issues already
addressed or advance arguments that could have been raised in
prior briefing” (citation omitted)); see also
Comeau v. Rupp, 810 F.Supp. 1172, 1175 (D. Kan. 1992)
(explaining that a party seeking reconsideration may not
revisit issues already addressed).
Motion for Reconsideration also provides no reason that the
court should reconsider its previous ruling. Plaintiff again
alleges that she brings state legal malpractice claims in
federal court. Doc. 11 at 1 (accusing “state
attorneys” of “committing illegal
malpractice”). She asserts that the court has subject
matter jurisdiction under the ADA. Id. But, as the
court has explained repeatedly to plaintiff in this case and
in others, merely citing to the ADA is insufficient to confer
federal question subject matter jurisdiction because the ADA
has no plausible application to her state legal malpractice
claims. The court thus denies plaintiff's Motion for
THEREFORE ORDERED BY THE COURT THAT plaintiff's Motion
for Reconsideration (Doc. 11) is denied.
 The court construes plaintiff's
filings liberally because she proceeds pro se. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(“A pro se litigant's pleadings are to be construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers.”).
 Although plaintiff brings this lawsuit
pro se, she is not relieved from complying with the rules of
the court or facing the consequences of noncompliance.
Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir.
1994); Nielsen v. ...