United States District Court, D. Kansas
BRENDA A. FEARS, Plaintiff,
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY, et al., Defendants.
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
A. Fears brings suit pro se against the Unified
Government of Wyandotte County and Nancy Burns for violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and the Americans With
Disability Act (“ADA”), 42 U.S.C. § 12101
et seq. See Employment Discrimination
Complaint (Doc. #1) filed November 22, 2017. On July 9,
2018, the Court entered an order which dismissed with
prejudice the claims against Burns. See Memorandum And
Order (Doc. #26). This matter comes before the Court on
plaintiff's Motion For Reconsideration (Doc.
#27) filed August 14, 2018. For reasons stated below, the
Court overrules plaintiff's motion.
seeks reconsideration of a dispositive order for which the
Court has not yet entered judgment. The Court has discretion to
revise an interlocutory order at any time prior to the entry
of final judgment. See Fed.R.Civ.P. 54(b);
Anderson v. Deere & Co., 852 F.2d 1244, 1246
(10th Cir. 1988). In considering plaintiff's motion, the
Court applies the legal standards of Rule 59(e), Fed.R.Civ.P.
and D. Kan. Rule 7.3, which are essentially identical.
See, e.g., BHC Dev., L.C. v. Bally Gaming,
Inc., 985 F.Supp.2d 1276, 1295 (D. Kan. 2013).
motion to reconsider must be based on (1) an intervening
change in controlling law; (2) newly available evidence; or
(3) the need to correct clear error or prevent manifest
injustice. See Coffeyville Res. Ref. & Mktg., LLC v.
Liberty, 748 F.Supp.2d 1261, 1264 & n.2 (D. Kan.
2010); see also D. Kan. R. 7.3(b); Comeau v.
Rupp, 810 F.Supp. 1172, 1174-75 (D. Kan. 1992). 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)). Such a motion is not
appropriate to revisit issues already addressed or to advance
arguments that a party could have raised in prior briefing.
See, e.g., Servants of Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000) (addressing motion
brought under Rule 59(b)). A motion to reconsider is not a
second opportunity for the losing party to make her strongest
case, to rehash arguments or to dress up arguments that
previously failed. Brown v. Presbyterian Healthcare
Servs., 101 F.3d 1324, 1332 (10th Cir. 1996);
Resolution Trust Corp. v. Greif, 906 F.Supp. 1446,
1456 (D. Kan. 1995); Voelkel v. Gen. Motors Corp.,
846 F.Supp. 1482, 1483 (D. Kan. 1994). A party's failure
to present her strongest case in the first instance does not
entitle her to a second chance through a motion to
reconsider. Cline v. S. Star Cent. Gas Pipeline,
Inc., 370 F.Supp.2d 1130, 1132 (D. Kan. 2005).
noted, plaintiff seeks reconsideration of the Court's
order dismissing her claims against Burns. In the order, the
Court found that Title VII and the ADA do not impose personal
liability against individual supervisors and that to the
extent plaintiff may seek to assert claims against Burns in
her official capacity, such action is superfluous because the
Unified Government is already a defendant in the case.
See Memorandum And Order (Doc. #26) at 5.
support of her motion for reconsideration, plaintiff asserts
facts which apparently support her claim that Burns
discriminated and/or retaliated against her for complaining
to the union representative. See Motion For
Reconsideration (Doc. #27) at 2. Plaintiff does not
assert that evidence has become newly available to her.
See id. Even if she did, the new allegations would
not change the Court's previous conclusions,
i.e. that under Title VII and the ADA plaintiff
cannot hold Burns personally liable and that any official
capacity claims against Burns are superfluous since the
Unified Government is already a defendant in the case.
Similarly, plaintiff has not shown an intervening change in
controlling law or the need to correct clear error or prevent
manifest injustice. On this record, the Court declines to
reconsider its ruling.
IS THEREFORE ORDERED that plaintiff's Motion
For Reconsideration (Doc. #27) filed August 14, 2018 is
 Plaintiff also sued ASFME. On April
11, 2018, the Court dismissed those claims without prejudice
for failure to obtain service within 90 days after filing the
complaint. See Order (Doc. #14).
 Local Rule 7.3(b), D. Kan., governs
motions to reconsider non-dispositive orders, while Rule 59,
Fed. R. Civ. P., generally applies to final orders and
judgments that adjudicate all of the parties' remaining
rights and liabilities. Coffeyville Res. Ref. & Mktg.
v. Liberty Surplus Ins. Corp., 748 F.Supp.2d 1261, 1264
n.3 (D. Kan. 2010) (citing Fye v. Okla. Corp.
Comm'n, 516 F.3d 1217, 1223 n.2 (10th Cir. 2008);
Raytheon Constr., Inc. v. Asarco Inc., 368 F.3d
1214, 1217 (10th Cir. 2003)). Some uncertainty exists with
respect to whether orders disposing of some but not all
claims are dispositive or non-dispositive under D. Kan. Rule
7.3. A.H. ex rel. Hohe v. Knowledge Learning Corp.,
No. 09-2517-DJW, 2011 WL 2731757, at *2 n.12 (D. Kan. July
13, 2011) (noting disagreement whether to characterize
partial summary judgment orders as dispositive or
non-dispositive); Coffeyville Res. Ref. & Mktg.,
748 F.Supp.2d at 1264; Johnson v. Simonton ...