Larson v. Delaware Highlands Assisted Living, LLC

Filing 62

MEMORANDUM AND ORDER overruling 58 Motion for Reconsideration. Signed by Chief Judge Kathryn H. Vratil on 8/21/2012. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
VIRGINIA P. LARSON,

)
)
Plaintiff,
)
)
v.
)
)
DELAWARE HIGHLANDS
)
AL SERVICES PROVIDER, LLC,
)
)
Defendant.
)
__________________________________________)

CIVIL ACTION
No. 10-2295-KHV

MEMORANDUM AND ORDER
Plaintiff filed this action against her former employer, Delaware Highlands AL Services
Provider, LLC (“Delaware Highlands”), alleging discriminatory termination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”), and the Americans with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”). She asserts that defendant terminated her
employment because of her age – 69 – and because of her perceived disability – recovering from
cancer surgery. On April 24, 2012, the Court filed a memorandum and order which sustained
defendant’s summary judgment motion, and on the next day the Court entered judgment for
defendant. See Doc. #s 56, 57. This matter comes before the Court on An Appeal And Response
To Memorandum And Order Document 56 (Doc. #58), filed pro se by plaintiff on May 11, 2012,
which asks the Court to reconsider its summary judgment order. For reasons set forth below, the
Court finds that plaintiff’s motion should be overruled.
Factual And Procedural Background
Through counsel, plaintiff filed suit on May 24, 2010. On November 12, 2010, plaintiff filed
an amended complaint. After discovery closed, on December 7, 2011, defendant filed its summary
judgment motion. See Doc. #46. On January 19, 2012, plaintiff responded to the summary

judgment motion. See Doc. #52. The Court sustained the motion and entered judgment for
defendant on April 25, 2012. See Memorandum and Order (Doc. #56); Judgment (Doc. #57).
Plaintiff asks the Court to reconsider. She asserts that she is unsuccessful in contacting her
counsel, and she sets forth a number of factual assertions from the Court’s memorandum and order
that she believes are based on erroneous information or lies. Defendant responds that the Court
should overrule the motion to reconsider because (1) the motion is procedurally deficient, (2) the
request is based on inadmissible evidence and (3) plaintiff is not entitled to relief under Federal Rule
of Civil Procedure 59(e) or 60(b).
Legal Standards
The Federal Rules of Civil Procedure do not recognize motions to reconsider. Hatfield v.
Bd. of County Comm’rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995). As a result, this
Court typically construes any self-styled motion to reconsider a dispositive order or judgment as
either a Rule 59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from
judgment or order. Johnson v. Gilchrist, No. 09-3063-SAC, 2010 WL 750256, at *1 (D. Kan.
Mar. 2, 2010) (citing Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995)). Because plaintiff filed
the motion within 28 days of the judgment, the Court construes it as a Rule 59(e) motion to alter or
amend judgment.1
A party seeking to alter or amend a judgment pursuant to Rule 59(e) must establish (1) an
intervening change in the controlling law; (2) the availability of new evidence that could not have

1

If a party files a motion to reconsider more than 28 days after entry of the dispositive
order or judgment, the Court treats the motion as a Rule 60(b) motion for relief from judgment or
order. See Fed. R. Civ. P. 60(c)(1) (Rule 60(b) motion “must be made within a reasonable time” and
if motion brought under subsections (b)(1), (2) or (3), no more than year after entry of judgment or
order).
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been obtained previously through the exercise of due diligence; or (3) the need to correct clear error
or prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Such a motion does not permit a losing party to rehash arguments previously addressed or to present
new legal theories or facts that could have been raised earlier. Brown v. Presbyterian Healthcare
Servs., 101 F.3d 1324, 1332 (10th Cir. 1996).
Analysis
Plaintiff asserts that the Court erred in granting summary judgment in this case because many
of the facts in the memorandum and order, although offered by defendant and uncontroverted by
plaintiff, are erroneous. She further asserts that she timely provided information to her counsel to
refute many of these facts, but that he failed to use the information in responding to defendant’s
summary judgment motion. Moreover, she has been unable to contact her counsel since the Court
entered judgment. Accordingly, plaintiff filed her motion pro se.
Plaintiff’s filing does not comport with the Federal Rules of Civil Procedure or with this
Court’s local rules. Plaintiff is represented by counsel, who has not moved to withdraw, and thus
counsel is obligated to sign motions filed on plaintiff’s behalf. Fed. R. Civ. P. 11(a). Counsel did
not sign the motion. In addition, the rules of this Court require parties to file a brief or memorandum
in support of motions, which must contain a statement of the nature of the matter before the Court,
a concise statement of the facts with support from the record, a statement of the questions presented
and the argument with citations to applicable authority. D. Kan. Rules 7.1, 7.6.
More to the point, plaintiff does not raise new issues or present evidence that could not have
been contained in her response to defendant’s summary judgment motion. As noted above, the
Court may grant a motion under Rule 59(e), Fed. R. Civ. P., to correct manifest errors of law or to

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allow newly discovered evidence. Plaintiff has not shown that new evidence is available, nor does
she assert that the Court’s order contains manifest errors of law. For these reasons, and for
substantially the reasons set forth in Defendant’s Response To Plaintiff’s Motion For
Reconsideration (Doc. #60) filed May 25, 2012, the Court finds that plaintiff’s motion to reconsider
should be overruled.
IT IS THEREFORE ORDERED that An Appeal And Response To Memorandum And
Order Document 56 (Doc. #58), filed pro se by plaintiff on May 11, 2012, be and hereby is
OVERRULED.
Dated this 21st day of August, 2012, at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

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