United States District Court, D. Kansas
SCOTT MOORE, JAMES LONG, AND NANCY PERRY, on behalf of themselves and all others similarly situated, Plaintiffs,
KRIS KOBACH, in his individual capacity, and SCOTT SCHWAB, in his official capacity as the Secretary of State of Kansas, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
matter comes before the court on defendant Kris Kobach's
Motion to Reconsider (Doc. 19). It asks the court to
reconsider the court's decision denying defendants'
Motion to Dismiss Count II of the Complaint in the Memorandum
and Order dated February 1, 2019. Doc. 17.
reasons explained below, the court finds defendant
Kobach's arguments do not merit a different outcome. The
court thus denies defendant Kobach's motion.
Moore, James Long, and Nancy Perry bring this action
individually and on behalf of all others similarly situated
against defendants Scott Schwab, in his official capacity as
the Kansas Secretary of State, and former Kansas Secretary of
State Kris Kobach, in his individual capacity. Defendant
Kobach was Kansas Secretary of State when the alleged
violations occurred. Plaintiffs allege that defendant Schwab
has violated their Fourteenth Amendment right to
informational privacy in two ways: (1) failing to adopt
adequate safeguards for the Interstate Voter Registration
Crosscheck Program (“Crosscheck”); and (2)
disclosing part of plaintiffs' Social Security numbers
and other personal identifiable information. Plaintiffs also
allege defendant Kobach has violated the Kansas Public
defendants Schwab and Kobach moved the court to dismiss all
of plaintiffs' claims. See Doc. 11. The court denied
defendants' motion, holding that Tenth Circuit precedent
recognizes a constitutional right to informational privacy.
Doc. 17 at 33. Defendant Kobach asks the court to reconsider
its Order denying dismissal of the claims asserting violation
of the Kansas Public Record Act.
Rule 7.3(b) requires a movant to base its motion for
reconsideration on: “(1) an intervening change in
controlling law; (2) the availability of new evidence; or (3)
the need to correct clear error or prevent manifest
injustice.” A motion to reconsider “is not
appropriate to revisit issues already addressed or advance
arguments that could have been raised in prior
briefing.” Ferluga v. Eickhoff, 236 F.R.D.
546, 549 (D. Kan. 2006) (citing Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). So,
“a motion for reconsideration is appropriate [only]
where the court has misapprehended the facts, a party's
position, or the controlling law.” Id. (citing
Servants of Paraclete, 204 F.3d at 1012). “The
decision whether to grant a motion to reconsider is committed
to the district court's discretion.”
Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus
Ins. Corp., 748 F.Supp.2d 1261, 1264 (D. Kan. 2010)
(citing In re Motor Fuel Temperature Sales Practices
Litig., 707 F.Supp.2d 1145, 1166 (D. Kan. 2010));
see also Brumark Corp. v. Samson Res. Corp., 57 F.3d
941, 944 (10th Cir. 1995) (noting “the decision to
grant reconsideration is committed to the sound discretion of
the district court”).
Kobach did not file a timely motion. Under D. Kan. Rule 7.3,
a movant seeking reconsideration must file its motion within
14 days after the order is filed, unless the court extends
the time. D. Kan. Rule. 7.3(b). The court issued its
Memorandum and Order denying defendants' Motion to
Dismiss on February 1, 2019. Doc. 17. And, the court did not
extend the time. Mr. Kobach did not file his Motion for
Reconsideration until February 16, 2019, which falls outside
the time frame contemplated by the court's local rules.
Thus, Mr. Kobach's request for reconsideration is
untimely and the court need not consider it.
even if Mr. Kobach had filed his motion for reconsideration
in a timely fashion, the court's conclusion would remain
the same. A motion for reconsideration “is not [an]
appropriate [device] to revisit issues already addressed or
advance arguments that could have been raised in prior
briefing.” Ferluga, 236 F.R.D. at 549.
Kobach's motion contends that three parts of Rule 7.3(b)
require the court to reconsider its February 1 Order: (1)
misapprehension of the facts; (2) misapprehension of the law;
and (3) clear error. The court addresses each of Mr.
Kobach's arguments below.
Misapprehension of Facts
Kobach asserts the court misapprehended the facts when it
took as true plaintiffs' allegation that “Attorney
General Schmidt also opined that the Presidential Advisory
Commission on Election Integrity was a ‘person' for
purposes of the Kansas Open Records Act, any information
shared with the Commission was tantamount to releasing the
information to the public.” Doc. 20 at 3. Defendants
raised their objection to this portion of the Complaint in
their Reply to Response to Motion to Dismiss. Doc. 15 at 5.
But, the court's decision on the Motion to Dismiss,
considered the Attorney General's opinion analogous and
persuasive authority when it determined whether plaintiffs
have alleged a violation of Kansas election law. Doc. 17 at