United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
January 25, 2017, the Court issued its Memorandum and Order
granting Defendants' Motion to Dismiss. The Court found
that Plaintiff's claims were preempted by the Labor
Management Relations Act (“LMRA”) and that she
failed to state a claim under the LMRA. Plaintiff has now
filed a Motion to Alter or Amend the Judgment pursuant to
Fed.R.Civ.P. 59 (Doc. 21). For the reasons stated below, the
Court denies Plaintiff's motion.
59(e) permits a party to request reconsideration and
alteration of a final judgment.The Court will reconsider and
alter an earlier judgment if the movant presents evidence of
(1) an intervening change in the controlling law, (2) newly
discovered evidence, or (3) the need to correct clear error
in the earlier judgment. Rule 59(e) is not, however, an
appropriate vehicle for revisiting issues already considered
or arguing matters that were not raised in prior
does not even reference the Rule 59(e) standard and offers no
valid reason for the Court to reconsider its earlier
judgment. Instead, Plaintiff seeks to revisit issues already
considered or attempts to assert arguments that she
previously failed to present. Specifically, Plaintiff takes
issue with the Court deciding Defendants' Motion to
Dismiss without considering her response.
had 21 days to file a response to Defendants' motion and
failed to do so. Instead, Plaintiff filed a response
approximately 45 days later. D. Kan. Rule 6.1(d)(2) requires
a response to a dispositive motion to be filed within 21
days. D. Kan. Rule 7.4(b) states that “[a]bsent a
showing of excusable neglect, a party or attorney who fails
to file a responsive brief or memorandum within the time
specified in D. Kan. Rule 6.1(d) waives the right to later
file such brief or memorandum. If a responsive brief or
memorandum is not filed within the Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion. Ordinarily, the Court will grant
the motion without further notice.” Finally, D. Kan.
Rule 15.1 requires that a party must first seek permission to
file a document out of time. Plaintiff did not seek the
Court's permission and never asserted any reason, let
alone excusable neglect, for the failure to file a timely
response. Thus, the Court was under no obligation to consider
the untimely response.
event, although the Court did not consider Plaintiff's
untimely response, the Court considered the relevant law in
making its decision and determined that Plaintiff failed to
state a claim because her claims were preempted by the LMRA.
To the extent that Plaintiff now seeks to offer an argument
that her claims are not preempted, she could have raised this
argument earlier had she timely responded to Defendants'
motion. In addition, Plaintiff's preemption argument in
her Motion to Reconsider does not take issue with the
preemption doctrine that the Court cited in its Order.
Instead, Plaintiff discusses another preemption doctrine that
the Court did not discuss. Thus, even Plaintiff's
untimely argument misses the mark.
also appears to take issue that the Court did not consider a
claim for “outrage.” The tort of outrage is
commonly referred to as a claim for intentional infliction of
emotional distress. Plaintiff's petition did not include
a claim for outrage. She labeled three claims: “Claim II
(wrongful termination), ” “Claim III (breach of
contract), ” and “Claim IV (defamation, libel and
slander).” Plaintiff included a “Claim V”
with no designation of a specific claim. To the extent
that Plaintiff now asserts that her “Claim V” is
one for outrage, there is no indication of this fact in the
allegations in the petition. Plaintiff simply states under
Claim V that she incorporates the above paragraphs (in the
petition) and that “the above claims … were made
with a callous disregard for the truth and constitute
outrageous behavior for which the plaintiff makes claim for
damages.” These allegations are in no way sufficient to
assert a claim for intentional infliction of emotional
considering Plaintiff's motion, the record in this case,
and the Court's previous Order, the Court finds that
Plaintiff does not identify any intervening change in law,
newly discovered evidence, or the need to correct clear error
in the prior judgment. Thus, there is no need to amend or
alter the judgment in this case.
IS THEREFORE ORDERED that Plaintiffs Motion Pursuant
to Rule 59 to Alter or Amend the Judgment (Doc. 21) is
IS SO ORDERED.
 Fed.R.Civ.P. 59(e).
See Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. ...