United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
case is before the court on Prairie View defendants’
motion for reconsideration of the court’s order denying
their motion to dismiss. (Doc. 34). Defendants contend that
it was clear error for the court to deny their motion to
dismiss. For the reasons set out more fully below,
defendants’ motion for reconsideration is denied.
Brendan Johnston initiated this action on January 24, 2019
with a complaint that alleged eleven total claims, nine of
which were against the Prairie View defendants (Doc. 1). On
March 26, 2019, defendants moved to dismiss each claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc.
17). Pursuant to the local rules for the U.S. District Court
for the District of Kansas, plaintiff originally had until
April 16, 2019 to respond to defendants’ motions. D.
Kan. Rule 6.1(d). However, plaintiff requested three
consecutive extensions of time. (Docs. 25, 27, and 29). As a
result, plaintiff’s final deadline to respond to the
motions was June 17, 2019. (Doc. 29).
did not file a response by that deadline and has not filed
one in the interim. Rather, on July 1, plaintiff instead
filed a motion for leave to amend his complaint and
subsequently amended that motion. (Docs. 31 and 32). The
court has not yet ruled on the amended motion for leave to
amend the complaint. However, in order to “promote
efficiency and to avoid having the motions to dismiss
intertwined with the motions to amend, ” the court
denied defendants’ motions to dismiss without prejudice
and without considering the merits. (Doc. 33). In that order,
the court gave all defendants express leave to file new
motions to dismiss after the motion to amend is resolved.
(Doc. 33). Prairie View defendants now move for
reconsideration of the court’s order denying their
motion to dismiss without prejudice. (Doc. 34).
to reconsider non-dispositive orders are governed by D. Kan.
Rule 7.3(b). Coffeyville Res. Ref. & Mktg., LLC v.
Liberty Surplus Ins. Corp., 748 F.Supp.2d 1261, 1264 (D.
Kan. 2010). An order denying a motion to dismiss is not
dispositive. See Skepnek v. Roper & Twardowsky,
LLC, No. 11-4102-KHV, 2012 WL 5907461, at *1 (D. Kan.
Nov. 26, 2012). According to Rule 7.3(b), 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 or prevent manifest
injustice.” D. Kan. Rule 7.3(b). Defendants base their
motion on the third rational, arguing that it was
“clear error” for the court to deny their motions
to dismiss. (Doc. 35, at 4). Accordingly, the court focuses
on that rationale.
motion to reconsider that is based on the clear error
rationale is available “when the court has
misapprehended the facts, a party’s position, or the
controlling law . . . .” Coffeyville, 748
F.Supp.2d at 1264. Guiding principles in considering whether
the court committed clear error include both Rule 7.4(b), the
local rule governing the consequences for an untimely
response to a motion, and this court’s past precedent
in procedurally similar situations.
7.4(b) states that “[i]f a responsive brief or
memorandum is not filed within the D. Kan. Rule 6.1(d) time
requirements, the court will consider and decide the motion
as an uncontested motion.” D. Kan. Rule 7.4(b).
District courts have substantial latitude in interpreting
their own local rules. Smith v. Ford Motor Co., 626
F.2d 784, 796 (10th Cir. 1980). In procedurally similar
situations, this court has not interpreted Rule 7.4(b) as
requiring an immediate ruling on a motion to dismiss when
opposing counsel fails to file a timely response. See,
e.g., Wilson v. Saint Francis Cmty. Servs., No. 18-2027,
2018 WL 4409440, at *1 (D. Kan. Sept. 17, 2018) (noting that
the court issued a show cause order rather than immediately
ruling on the motion as uncontested when the party missed the
deadline to respond); Parker v. Berryhill, No.
18-1107, 2018 WL 4442201, at *1 (D. Kan. Sept. 17, 2018)
(same). Rather, before taking any action on the motion, the
undersigned judge typically has issued an order requiring the
party to show cause as to why he missed the response deadline
and why the court should allow a late response. See
Wilson, 2018 WL 4409440, at *1; Parker, 2018 WL
4442201, at *1.
court did not commit clear error in denying defendant’s
motion to dismiss without prejudice. While Rule 7.4(b) allows
the court to decide a motion as uncontested if the opposing
party does not file a responsive brief, it imposes no
requirement that the court do so immediately or within a
certain amount of time. See D. Kan. Rule 7.4(b). A
court has considerable latitude in interpreting and applying
its local rules. This court has repeatedly given a
“warning” of sorts to the non-compliant party and
given that party an opportunity to show cause why the court
should consider a late response. See, e.g.,
Wilson, 2018 WL 4409440, at *1. When possible and
reasonable, the court prefers to resolve motions on their
merits after all sides have stated their positions. While the
court is certainly not required to give parties additional
opportunities to file briefs, it is within this court’s
discretion to do so.
court had not yet issued a show cause order to plaintiff when
he filed a motion to amend his complaint. Given this
development, in the interest of avoiding unnecessary
complication of the docket in this case, the court denied
defendants’ motion to dismiss without prejudice. This,
again, was within the court’s discretion. See Garza
v. Davis, 596 F.3d 1198, 1205 (10th Cir. 2010) (noting
that district courts typically have “great
discretion” in their control of the docket). Given the
court’s discretion both in interpreting its local rules
and in docket management, the court did not commit
“clear error” as defendants argue in their motion
for reconsideration under Rule 7.3(b). This conclusion is
further supported by the fact that defendants suffer no
prejudice from the court’s denial of their motion to
dismiss. In that order, the court clearly noted that
defendants could refile their motion to dismiss after the
motion to amend is resolved. They still maintain the ability
to do so.
have shown no valid basis for reconsideration, and the court
denies their motion.
IS THEREFORE ORDERED that defendants’ motion