Al-Dahir v. Hamlen et al

Filing 57

MEMORANDUM AND ORDER denying 41 Plaintiffs Motion to Reconsider and in the Alternative to Modify Complaint to Reflect Proper Party. IT IS FURTHER ORDERED that the case is closed, and judgment shall be entered in favor of defendants. See Memorandum and Order for further details. Signed by District Judge Carlos Murguia on 9/2/2011. Mailed to pro se party Omar A. Al-Dahir by regular mail. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
OMAR A. AL-DAHIR,
Plaintiff,
v.
ROGER W. HAMLIN, FEDERAL
BUREAU OF INVESTIGATION, and
ERICSSON SERVICES, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION
Case No. 10-2571-CM

MEMORANDUM AND ORDER
Plaintiff Omar A. Al-Dahir, proceeding pro se, originally brought this action against
defendants Roger W. Hamlin, Federal Bureau of Investigation (“FBI”), and Ericsson Services Inc.
(“ESI”). The case arises out of plaintiff’s termination from his employer, ESI, when a “federal
agency” made “inquiries” about him. Plaintiff claims that defendant FBI committed the torts of
defamation and tortious interference with contract, and also violated the Privacy Act. On May 3,
2011, the court granted a motion to dismiss the FBI from the case. On June 28, 2011, the court also
dismissed defendants Hamlin and ESI. The case is now before the court on Plaintiff’s Motion to
Reconsider and in the Alternative to Modify Complaint to Reflect Proper Party (Doc. 41).
Whether to grant or deny a motion for reconsideration is committed to the court’s discretion.
GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir. 1997); Hancock
v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988). In exercising that discretion, courts
generally recognize three major grounds justifying reconsideration: (1) an intervening change in
controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent
manifest injustice. See Marx v. Schnuck Mkts., Inc., 869 F. Supp. 895, 897 (D. Kan. 1994) (citations

omitted); D. Kan. Rule 7.3 (listing three bases for reconsideration of order); see also Sithon
Maritime Co. v. Holiday Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998) (“Appropriate circumstances
for a motion to reconsider are where the court has obviously misapprehended a party’s position on
the facts or the law, or the court has mistakenly decided issues outside of those the parties presented
for determination.”). “A party’s failure to present its strongest case in the first instance does not
entitle it to a second chance in the form of a motion to reconsider.” Sithon, 177 F.R.D. at 505. A
motion to reconsider is not a proper place to reargue arguments that the court previously rejected.
See Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Here, plaintiff claims that he did not intend to make a governmental agency (the FBI) part of
the case. Instead, he claims, he intended to name only five unidentified federal agents. He now asks
the court to grant him leave to amend his complaint to name the proper parties instead of dismissing
the case against the FBI. In his motion to reconsider, plaintiff claims that he is actually bringing a
Bivens action against the officers. He states that he is “seeking redress for violation of his Fifth
Amendment claims with a Bivens [] action[].” (Doc. 42, at 2.)
Upon further review, the court notes that plaintiff’s complaint does allege that unidentified
FBI agents violated plaintiff’s Fifth Amendment rights by defaming his character and violating the
Privacy Act. He also lists “Five Unidentified FBI Agents” as parties within the text of the
complaint, although the case caption names the FBI itself. To be certain, plaintiff’s complaint was
not completely clear about who he intended to sue.
But plaintiff’s attempt to clarify his intent does not merit reconsideration of the court’s
previous order. He now seeks to add claims against new parties in a case that has no defendants
remaining. Moreover, he seeks to add claims that are futile. He may not bring Privacy Act claims

-2-

against individuals. Wren v. Harris, 675 F.2d 1144, 1148 n.8 (10th Cir. 1982). And while a plaintiff
may bring a Fifth Amendment claim for defamation under certain circumstances, this case does not
present one of those circumstances. Here, FBI agents allegedly made defamatory statements that
resulted in plaintiff’s employer terminating his employment. Damage to one’s reputation plus loss
of a job may state a constitutional claim—if the employer is a public entity. See Pendleton v. City of
Haverhill, 156 F.3d 57, 64 (1st Cir. 1998); see also Mertik v. Blalock, 983 F.2d 1353, 1362 (6th Cir.
1993) (“[T]he Court has limited the scope of an actionable liberty interest deprivation to situations
involving termination of government employment or the loss of a legal right or status previously
enjoyed under state or federal law.”) (citing Paul v. Davis, 424 U.S. 694, 710–11 (1976)). In this
case, plaintiff’s employer was a private corporation. He was not terminated from government
employment. At most, plaintiff may be able to pursue a state law claim of defamation against the
FBI agents, but a constitutional claim is not actionable.
With no Privacy Act claim or constitutional claim, plaintiff has no remaining federal claims
against the FBI (or in the case as a whole). The court declines to exercise supplemental jurisdiction
over plaintiff’s state law claim for tortious interference with contract.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Reconsider and in the
Alternative to Modify Complaint to Reflect Proper Party (Doc. 41) is denied.
IT IS FURTHER ORDERED that the case is closed, and judgment shall be entered in favor
of defendants.
Dated this 2nd day of September 2011, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

-3-