Martin Marietta Materials, Inc. et al v. Kansas Department of Transportation et al

Filing 76

MEMORANDUM AND ORDER denying 60 Motion for Reconsideration. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 10/2/2013. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARTIN MARIETTA MATERIALS,
INC., and HUNT MARTIN
MATERIALS, LLC,
Plaintiffs
vs.

Case No. 12-2699-SAC

KANSAS DEPARTMENT OF
TRANSPORTATION, and MIKE
KING, in his individual and official
Capacity as Kansas Secretary of
Transportation, and JERRY YOUNGER,
in his individual and official capacity
as Deputy Secretary of Transportation
State Transportation Engineer,
Defendants.
MEMORANDUM AND ORDER
The court filed a lengthy order back in May that decided the
defendants’ motion for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c) (Dk. 22), and the plaintiffs’ motion for leave to file first amended
complaint pursuant to Fed. R. Civ. P. 15(a)(2) (Dk. 31). (Dk. 59). The
plaintiffs have filed a motion for reconsideration (Dk. 60) supported by a
detailed memorandum (Dk. 61). With the defendants’ opposition on file (Dk.
67), the court will address the pending motion.
The plaintiffs (collectively, “Martin Marietta”) ask the court to
reconsider its ruling that they do not have liberty or property interest in
being on the Kansas Department of Transportation’s (“KDOT”) approved or

pre-qualified list (“A-Listing/PQL”) of concrete aggregate suppliers. They say
their motion is necessary because the court’s order does not expressly
mention or apply the testimony by KDOT’s Fed. R. Civ. P. 30(b)(6) witness.
Martin Marietta presumes this testimony was overlooked in that they
understand the court’s interpretation and application of KDOT’s policies and
rules to be contrary to the testimony.
The record should be clear at the outset. The court was not
remiss in its handling of the deposition of Richard E. Kreider, Jr. Indeed, the
court did review and consider carefully all of the plaintiffs’ citations to that
deposition as part of the materials submitted. The plaintiffs offer no
authority for the proposition that all evidence submitted with the briefing of
dispositive motions should be discussed separately in the court’s ruling and if
it is not, then a party may presume and be rightly concerned that the court
was unaware of the evidence or overlooked it. What the plaintiffs repeatedly
quote in their motion for reconsideration is Kreider’s testimony that the
Standard Specifications were used in determining which suppliers made the
A-Listing/PQL and that he did not regard himself as having the personal and
unfettered discretion to decide which suppliers made this list. The court
believes this testimony is consistent with the plaintiffs’ factual allegations in
the complaints. Consequently, when the court summarized those factual
allegations, it necessarily considered this testimony. For that matter, the
court did not regard Kreider’s testimony to add any critical or contradictory
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elements to the court’s analysis and conclusions, so it chose not to extend
the length of its order with a separate discussion of the testimony.
STANDARDS GOVERNING RECONSIDERATION
As this court has observed, its rulings “’are not intended as first
drafts, subject to revision and reconsideration at a litigant's pleasure.’” Koch
v. Koch Industries, Inc., 6 F.Supp.2d 1207, 1209 (D.Kan. 1998) (quoting
Quaker Alloy Casting v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D.
Ill. 1988)), aff’d, 203 F.3d 1202 (10th Cir. 2000), cert. denied, 531 U.S. 926
(2000). A motion to reconsider a non-dispositive order “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). A motion to reconsider is not appropriate if
the movant only wants the court to revisit issues already addressed or to
hear new arguments or supporting facts that could have been presented
originally. Koch, 6 F. Supp. 2d at 1209; Fulghum v. Embarq Corp., ---F.
Supp. 2d---, 2013 WL 589611 at *35 (D. Kan. 2013).
In its motion and memorandum, Martin Marietta does not cite or
apply these standards from the court’s local rules. The motion does not
argue any intervening change in controlling law or the availability of new
evidence. It may be that the plaintiffs perceive “the need to correct clear
error or prevent manifest injustice.” The motion and memorandum, however
fail to frame the arguments as establishing “clear error” or “manifest
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injustice.” Not all disagreements with the court’s reasoning and conclusions
are clear error or manifest injustice. The plaintiffs’ motion simply revisits the
court’s analysis and, using again the same or recast arguments, seek to
have the court change its mind. This is not a proper purpose for the
plaintiffs’ motion to reconsider.
ANALYSIS
Because Martin Marietta’s motion to reconsider is outside the
proper scope of the court’s local rules, this order will not address all of the
arguments offered over the span of thirty-two pages. What Martin Marietta
cites as the critical testimony from Kreider’s deposition does not contradict
what the court understood and summarized as the plaintiffs’ allegations in
this case. (Dk. 59, pp. 24-25). The court accepted the plaintiffs’ allegations
as true that KDOT, having written and published its Standard Specifications,
would look to them in making decisions about whether a supplier should be
on an approved list. The court never found, nor assumed, that KDOT officials
had the unbridled discretion to ignore these criteria or that they would apply
them arbitrarily in making these decisions. The court, instead, considered all
relevant statutes and Standard Specifications cited by both sides. It did not
rely on just those provisions that the plaintiffs isolated and construed as
trumping all others. The court’s understanding came from a reasonable
reading and construction of the whole. The court decided that the governing
statute, the Standard Specifications, and the alleged understandings from
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them, considered together as a whole, did not so limit KDOT’s discretion in
selecting and using concrete aggregate suppliers on state road construction
projects as to create a legitimate claim of entitlement in simply being on the
A-Listing/PQL. The court believes its approach and reasoning is apparent and
adequately explained in the order. Thus, Martin Marietta’s stated reason for
filing the motion to reconsider is wide of the mark and arguably may be a
pretext for having the court revisit its rulings.
Martin Marietta makes a blanket charge that the court’s order
contains several legal errors beginning with its disregard of the plaintiffs’
factual allegations and the evidence supporting them. Purportedly, the order
draws inferences or makes assumptions contrary to the plaintiffs’ allegations
and evidence, and it also construes the plaintiffs’ allegations most favorably
for the defendants. While all of these arguments are made, the plaintiffs’
real dispute is with the court’s refusal to accept Martin Marietta’s alleged
legal conclusion that it possessed a property interest in being on the AListing/PQL by reason of its factual allegations. “[T]he tenet that a court
must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The court is “not bound to accept as true a legal conclusion couched
as a factual allegation.” Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 555
(2007). The court’s ruling that denied a property interest did not involve
disregarding, weighing, or rejecting the plaintiff’s factual allegations or, for
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that matter, the drawing of inferences or construing them unfavorably to the
plaintiffs.
The plaintiffs bring their motion rearguing that they have a
property interest simply because KDOT uses substantive, objective criteria in
evaluating whether a quarry may appear on a pre-approved list of aggregate
suppliers. This argument was rejected for several reasons that are sound in
this court’s judgment. While the plaintiffs now challenge those reasons on
the same grounds and more, the court remains convinced of the soundness
of its ruling. Nor does the court see any real value from extending this order
with a review and restatement of all of its reasons and conclusions.
Suffice it to say, the statutory and regulatory framework, as well
as the industry understanding of it as alleged, shows KDOT had broad
discretion in determining the acceptable quality of road construction
materials and it did not constrain this discretion through its ongoing
development, use, and review of those standards. Instead, KDOT first
established in the statute and preserved in the regulatory framework the
discretion necessary to insure that only quality materials are used in state
highway construction. The court does not find in this framework a
meaningful and substantive limitation on KDOT’s unilateral discretion to
establish or change those standards and to enforce the same throughout the
application and construction process. The plaintiffs did not allege “that
KDOT’s discretion to change or add to the specifications or to the
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requirements found in contract documents is subject to any procedural
limitations outside of a specific contractual relationship which has not been
alleged here.” (Dk. 59, p. 35). KDOT put in place a “process of inspection,
testing and approval . . . to benefit KDOT, not the contractor or its thirdparty suppliers.” (Dk. 59, p. 34). The framework “cannot be plausibly
interpreted as meaningfully limiting KDOT’s discretion as to allow removal
only upon what could be likened to just cause.” Id. at 36. On these grounds
and those more fully stated at pages 29-42 of its prior order, the court
rejects the plaintiffs’ legal conclusion as alleged that it has a property and
liberty interest as claimed. The plaintiffs’ motion for reconsideration is
denied.
IT IS THEREFORE ORDERED that the plaintiffs’ motion for
reconsideration (Dk. 60) is denied.
Dated this 2nd day of October, 2013, Topeka, Kansas.

s/ Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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