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Moore v. Kobach

United States District Court, D. Kansas

September 5, 2019

SCOTT MOORE, JAMES LONG, AND NANCY PERRY, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
KRIS KOBACH, in his individual capacity, and SCOTT SCHWAB, in his official capacity as the Secretary of State of Kansas, Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         This 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.

         For the reasons explained below, the court finds defendant Kobach's arguments do not merit a different outcome. The court thus denies defendant Kobach's motion.

         I. Background

         Scott 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 Records Act.

         Earlier, 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.

         II. Legal Standard

         D. Kan. 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”).

         III. Analysis

         Mr. 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.

         But, 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.

         Mr. 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.

         a. Misapprehension of Facts

         Mr. 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 ...


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