Kuhner v. Highland Community Unit School District No. 5 et al

Filing 57

MEMORANDUM AND ORDER, denying 46 MOTION for Reconsideration re 44 Clerk's Judgment, 43 Memorandum & Order filed by Kim Kuhner. Signed by Judge J. Phil Gilbert on 10/21/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIM KUHNER, Individually and as
Guardian of the Estate of J.K. a Minor,
Plaintiff,
vs.
HIGHLAND COMMUNITY UNIT
SCHOOL DISTRICT NO. 5, et al.,
Defendants.

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Case No. 15-cv-00107-JPG-DGW

MEMORANDUM AND ORDER
This matter comes before the Court on the timely motion (Doc. 46) of plaintiff Kim
Kuhner to alter or amend the judgment in this case pursuant to Federal Rule of Civil Procedure
59(e).

Although titled as a Motion for Reconsideration, where a substantive motion for

reconsideration is filed within 28 days of entry of judgment and asserts a ground for relief under
Rule 59(e), the Court will construe it as a motion pursuant to Rule 59(e). See Obriecht v.
Raemisch, 517 F.3d 489, 493 (7th Cir. 2008) (motions filed within Rule 59(e) period construed
based on their substance, not their timing or label). The Plaintiff also filed Additional Authority
(Doc. 50) and the defendants filed a timely response (Doc. 52).
Plaintiff also filed a reply (Doc. 56) to defendants’ response. Pursuant to Local Rule
7.1(c)(2), reply briefs are not favored and should only be filed in exceptional circumstances.
Plaintiff’s reply states that the defendants’ response brief should be stricken by the Court for
failure to comply with Local Rule 7.1. Specifically, Plaintiff states that defendants’ response
was filed in excess of the permitted 14 days. The Court first notes that the response period to a
post-judgment motion is 30 days. Local Rule 7.1(c). Next, the Court granted the defendant 30
days from the filing of plaintiff’s additional authority to file its response. The Court did not
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specify that the defendant’s additional time was allotted solely to a response to the plaintiff’s
additional authority. The additional time was allotted so that the defendants had adequate time to
incorporate plaintiff’s additional authority within its response. As such, defendants’ response
was filed within 30 days granted by the Court and the Court has considered the response.
On June 14, 2016, the Court entered judgment in this case following a ruling on
defendant’s Motion to Dismiss for Failure to State a Claim. The plaintiff now asks the Court to
alter or amend that judgment. Under Rule 59(e), the Court has an opportunity to consider newly
discovered material evidence or intervening changes in the controlling law or to correct its own
manifest errors of law or fact to avoid unnecessary appellate procedures. Moro v. Shell Oil Co.,
91 F.3d 872, 876 (7th Cir. 1996); see Harrington v. City of Chi., 433 F.3d 542, 546 (7th Cir.
2006). Rule 59(e) relief is only available if the movant clearly establishes one of the foregoing
grounds for relief. Harrington, 433 F.3d at 546 (citing Romo v. Gulf Stream Coach, Inc., 250
F.3d 1119, 1122 n. 3 (7th Cir. 2001)).
The only argument in plaintiff’s motion is that this Court’s Order (Doc. 43) granting
defendants’ motion to dismiss, “conflicts with the plain language of the relevant section of the
IDEA, 20 U.S.C. § 1415(1).” (Doc. 46, pg 1.) Specifically, the plaintiff argues that exhaustion
of administrative procedures is required prior to pursuing federal claims, but that exhaustion is
not required for state law claims. The Court agrees. However, there does not appear to be any
state law claims within the plaintiff’s amended complaint.
Counts I, IV, VI, VIII, & X of Plaintiff’s Amended Complaint (Doc. 32) are claims under
42 U.S.C. § 1983; Count II is a claim under the Rehabilitation Act of 1973; Count III is claim
under the Americans with Disabilities Act of 1990; and Counts V, VII, IX, & XI are willful and
wanton misconduct claims. Under Illinois law, “[t]here is no separate and independent tort of

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“willful and wanton” misconduct. Ziarko v. Soo Line R. Co., 161 Ill. 2d 267, 274, 641 N.E.2d
402, 406 (1994). Because there is no separate willful and wonton state cause of action, there are
no state claims that would not be subject to the administrative exhaustion requirements of the
IDEA.
Therefore, Plaintiff Kim Kuhner’s Motion (Doc. 46) to Reconsider Court’s June 14, 2016
Order is DENIED. The Court advises the Plaintiff that if she wishes to appeal the judgment in
this case or this order, she must file a notice of appeal in this Court within 30 days of entry of
this order, Fed. R. App. P. 4(a)(1)(A), (a)(4)(A) & (a)(4)(B)(ii), or within any extension of that
deadline authorized by the Court, Fed. R. App. P. 4(a)(5).
IT IS SO ORDERED.
DATED: 10/21/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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