Mullen v. Taylor

Filing 33

ORDER denying 31 Motion for Reconsideration filed by James Michael Taylor. Signed by Honorable Paul K. Holmes, III on June 9, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
THURSTLE DALE MULLEN
V.

PLAINTIFF
CASE NO. 2:10-CV-02019

JAMES MICHAEL TAYLOR

DEFENDANT
ORDER

Currently

before

the

Court

is

Defendant’s

Motion

for

Reconsideration (Doc. 31) and brief in support (Doc. 32). For the
reasons set forth herein, the Court finds that Defendant’s Motion
(Doc. 31) should be DENIED.
On

April

18,

2011,

the

Court

entered

an

Order

denying

Defendant James Michael Taylor’s Motion to Dismiss and granting
Plaintiff Thurstle Dale Mullen’s Motion to Dismiss. Mullen’s claims
were dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(2). Taylor now requests that the Court reconsider
its Order, contending that the dismissal of Mullen’s claims should
be with prejudice. Taylor moves the Court to reconsider or amend
its Order under Federal Rules of Civil Procedure 59(e) and 60(b).
“Rule 59(e) motions serve a limited function of correcting
manifest errors of law or fact or to present newly discovered
evidence.” Innovative Home Health Care v. P.T.-O.T. Assocs., 141
F.3d 1284, 1286 (8th Cir. 1998) (internal quotation omitted). Under
Rule 60(b), a party may be relieved from a final judgment, order,
or proceeding under certain enumerated circumstances, including the
existence

of

“mistake,

inadvertence,

surprise,

or

excusable

neglect.” F.R.Civ.P. 60(b). In other words, Rule 60(b) “provides
for extraordinary relief which may be granted only upon an adequate
showing of exceptional circumstances.” United States v. Young, 806
F.2d 805, 806 (8th Cir. 1986). None of the circumstances envisioned
by

Rule

59(e)

or

60(b)

as

sufficient

for

finding

that

reconsideration may be warranted are present in this case.
Taylor’s arguments were fully considered prior to the Court’s
ruling on the parties’ motions to dismiss, and were sufficiently
addressed in the Court’s Order concerning those motions. The e-mail
exhibit attached to Taylor’s brief in support (Doc. 32-1) raises no
new issues which would necessitate reconsideration of the Court’s
ruling. While the tone of Mr. Mullen’s e-mail undoubtedly leaves
something to be desired, the fact that he may plan to refile his
claims is not grounds to reconsider the Court’s dismissal without
prejudice under Rule 41(a)(2). Implicit within an order dismissing
an action without prejudice is the fact that the action can be
refiled if the plaintiff so desires. The judicial discretion
afforded the courts by Rule 41(a)(2) allows the Court to order a
dismissal without prejudice “unless the defendant would suffer some
plain legal prejudice other than the mere prospect of a second
lawsuit.” New York, C. & St. L. R. Co. v. Vardaman, 181 F.2d 769,
770 (8th Cir. 1950)(internal quotations omitted)(emphasis added).
Defendant’s instant Motion does nothing to alter the propriety
of the Court’s initial decision to dismiss Mullen’s claims without
prejudice

pursuant to

Rule 41(a)(2).

Accordingly,

Defendant’s

Motion for Reconsideration (Doc. 31) is hereby DENIED. The Court
reiterates that duplicative costs and fees may, and likely will, be
considered upon Plaintiff’s refiling of his claims.

IT IS SO ORDERED this 9th day of June 2011.

/s/ Paul K. Holmes, III
Paul K. Holmes, III
United States District Judge