Jackson v. Park Place Condominiums et al
Filing
102
MEMORANDUM AND ORDER denying 92 Motion to Appoint Counsel ; denying 94 Motion to Alter Judgment. Signed by District Judge Carlos Murguia on 5/14/15. Mailed to pro se party Marcia L. Jackson by regular mail. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARCIA L. JACKSON,
Plaintiff,
v.
PARK PLACE CONDOMINIUMS
ASSOCIATION, INC.,
Defendant.
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Case No. 13-2626-CM
MEMORANDUM AND ORDER
Plaintiff Marcia L. Jackson, proceeding pro se, filed suit against defendant Park Place
Condominiums Association, Inc., seeking damages under 28 U.S.C. § 1343 for alleged violations of
her civil rights. On March 25, 2015, the court granted summary judgment in favor of defendant. (Doc.
87.) Before the court is plaintiff’s Motion to Alter and Amend Summary Judgment (Doc. 94).1
In her motion, plaintiff attempts to “amend” her responses to twenty-eight of the thirty-nine
statements of fact that defendant set forth in its originally-filed motion for summary judgment.
Plaintiff’s “amended” responses include, for the most part, the same facts as told by plaintiff in her
originally-filed response (Doc. 70) and supplemental filings (Docs. 71, 72, 73 and 75). Moreover, as
with her previous filings, plaintiff fails to refer to any portion of the record to support her factual
statements. Even if she had properly referred to the record in the instant motion, however, plaintiff is
not entitled to relief.
I.
Legal Standard
1
On May 4, 2015, the court issued an order to show cause why defendant had failed to file a response to plaintiff’s motion
(Doc. 98). In response (Doc. 100), defendant’s counsel explained that the failure was an undiscovered filing error with the
court but that defendant’s response was nonetheless mailed to plaintiff on April 24, 2015, which was within the prescribed
time for responding. Given these circumstances, the court will consider defendant’s response (Doc. 100 at 4–7).
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Although she does not say in her motion, the court assumes plaintiff is requesting that the court
alter or amend the summary judgment pursuant to Rule 59(e) or that the court otherwise reconsider its
ruling. The court notes that the grounds justifying an alteration, amendment, or reconsideration are
essentially the same: (1) a change in law; (2) new evidence; and/or (3) the necessity of correcting clear
error or preventing manifest injustice. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000) (listing Rule 59(e) factors); Priddy v. Massanari, No. 99-4195-DES, 2001 WL 1155268, at
*2 (D. Kan. Sept. 28, 2001) (observing that the factors for reconsideration and Rule 59(e) are the
same). The decision whether to grant or deny a motion to reconsider is within the court’s sound
discretion. In re Baseball Bat Antitrust Litig., 75 F. Supp. 2d 1189, 1192 (D. Kan. 1999) (citing
Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir. 1988)) (additional citation omitted).
“[A] motion for reconsideration is appropriate where the court has misapprehended the facts, a
party’s position, or the controlling law.” Servants, 204 F.3d at 1012. However, “it is not appropriate
to revisit issues already addressed or to advance arguments that could have been raised in prior
briefing.” Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., 748 F. Supp. 2d 1261,
1264 (D. Kan. 2010) (citation omitted). More importantly, a motion for reconsideration “is not a
second chance for the losing party to make its strongest case or to dress up arguments that previously
failed.” Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994) (citation omitted).
II.
Discussion
The statements plaintiff makes in her current motion explaining why she controverts these
twenty-eight statements of fact do not materially differ from the statements she made in her prior
briefing explaining why she controverts these twenty-eight statements of fact. The court already
considered these facts and her arguments in a light most favorable to plaintiff. (Doc. 87 at 5–7.) A
Rule 59(e) motion does not allow plaintiff to revisit issues already considered. Trackwell v. U.S.
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Gov’t, No. 04-4168-SAC, 2005 WL 2921586, at *1 (D. Kan. Nov. 4, 2005) (citing Servants, 204 F.3d
at 1012).
Moreover, to the extent plaintiff references new facts, mostly in the form of statements made
by other individuals, plaintiff fails to provide the court with any admissible evidence to consider, as
these various statements are not contained in any sworn affidavit, discovery response, or deposition
excerpt.2 Rather, the statements as set forth by plaintiff amount to inadmissible hearsay. Even if
plaintiff had offered admissible evidence, the time for responding to defendant’s statements of fact has
long since passed. Also, plaintiff is attempting to introduce evidence that was available to her at the
time she filed her opposition brief and supplemental filings but that she apparently elected to not bring
forward to the court. This “evidence” was not newly discovered after the court’s summary judgment
order and affords plaintiff no basis upon which to alter or amend the summary judgment.
Even if the court considered the facts set forth in plaintiff’s “amended” responses, plaintiff has
not established that this evidence would produce a different result. Even with these facts, plaintiff
cannot establish a prima facie case of housing discrimination. Accordingly, the court declines to
reconsider its summary judgment ruling based upon plaintiff’s newly-amended statements. Comm. for
First Amendment v. Campbell, 962 F.2d 1517, 1524 (10th Cir. 1992) (affirming denial of motion for
reconsideration where plaintiffs submitted new evidence but failed to demonstrate that the evidence
was newly discovered or previously unavailable through the exercise of diligence). In this case, the
court has not misapprehended the facts, plaintiff’s position, or the controlling law. As such, the court
denies plaintiff’s motion to alter or amend its summary judgment ruling.
2
While plaintiff did submit several notarized “witness” statements made by herself, her family, and a friend in her original
response to defendant’s motion for summary judgment, many of the statements made therein do not bear on the material
issues of this case or, to the extent they do, the witness statements report what other individuals purportedly said, rendering
those statements double hearsay. The problem is that plaintiff failed to provide the court with sworn witness statements by
the individuals who actually made the alleged statements.
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IT IS THEREFORE ORDERED that plaintiff’s Motion to Alter and Amend Summary
Judgment (Doc. 94) is denied.
IT IS FURTHER ORDERED that plaintiff’s Motion to Appoint Counsel (Doc. 92) is denied.
Dated this 14th day of May, 2015, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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