Mir v. Brown et al

Filing 43

MEMORANDUM AND ORDER denying 40 Motion to Alter Judgment. Signed by Chief District Judge Julie A. Robinson on 9/30/2019. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JEHAN ZEB MIR,
Plaintiff,
Case No. 15-9097-JAR-JPO

v.
JAY BROWN, et al.,
Defendants.

MEMORANDUM AND ORDER DENYING MOTION TO ALTER JUDGMENT
Plaintiff Jehan Zeb Mir, proceeding pro se, filed this case in May 2015 against Kansas
Defendants Jay Brown and Westport Insurance Corporation (“Westport Defendants”), and
against California Defendants Iungerich & Spackman, a Professional Law Corporation (“I & S”),
Russell Iungerich, and Paul Spackman (collectively “I & S Defendants”). Plaintiff sought
monetary damages for federal and California state law claims. The Court granted the Westport
Defendants’ Motion to Dismiss, as joined by individual Defendants Iungerich and Spackman, on
grounds that Plaintiff’s claims are barred by the doctrine of res judicata.1 The Court also granted
as unopposed I & S’s Motion to Dismiss on the grounds that this Court lacks personal
jurisdiction and alternatively, that Plaintiff’s claim is barred by the doctrine of res judicata,
declined to exercise supplemental jurisdiction over Plaintiff’s state law claims, and dismissed the
case in its entirety.2 Judgment was entered on August 19, 2019, dismissing with prejudice the
claims against the Westport Defendants, Iungerich, and Spackman, and dismissing without
prejudice the claims against I & S.3

1

Doc. 32

2

Doc. 38.

3

Doc. 39.

1

This matter is now before the Court on Plaintiff’s Application to Amend Judgment (Doc.
40) requesting the Court to alter or amend the judgment to reflect a dismissal with prejudice with
respect to Defendant I & S. Plaintiff asks that the dismissal be with prejudice because dismissal
without prejudice “does not dispose of all issues on merit and is not a final judgment,” and thus
not appealable.4 Plaintiff’s request is misplaced.
Although Plaintiff does not specify the grounds for his request, the Court construes his
“application” as a motion to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e).
Grounds which justify alteration or amendment under Rule 59(e) include: (1) an intervening
change in controlling law; (2) new evidence that was previously unavailable; or (3) a need to
correct clear error or prevent manifest injustice.5
Defendant I & S filed a motion to dismiss under Fed. R. Civ. P. 12(b)(2) on the grounds
this Court lacked personal jurisdiction.6 In the alternative, I & S moved to dismiss under Rule
12(b)(6) on the grounds that Plaintiff’s claims are barred by the doctrine of res judicata. When a
defendant couples a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction with other
issues, the court must first determine the jurisdictional issue.7 If jurisdiction is lacking, the court
cannot render a valid judgment on the merits of the other issues.8 If a court determines that
personal jurisdiction is lacking for some or all of the defendants, all other claims and issues
related to those claims brought against those defendants are rendered moot.9 The court should
then dismiss the claims without prejudice on jurisdictional grounds. “Dismissing the case for

4

Doc. 40 at 4.

5

See Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017).

6

Doc. 36.

7

OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d 1086, 1090 (10th Cir. 1998).

88
9

Id.

Daugherty v. United States, 73 F. App’x 326, 329–30 (10th Cir. 2003).

2

lack of personal jurisdiction, therefore, acts as res judicata in courts subject to the same
jurisdiction limits, but does not preclude litigation of the merits in a court with jurisdiction.”10
That is what happened in this case—the Court first considered and granted I & S’s
motion to dismiss for lack of personal jurisdiction; it went on to hold, arguendo, that if it did
have jurisdiction, Plaintiff’s claims would be barred by the doctrine of res judicata.11 Although
dismissal of Plaintiff’s claims against I & S was without prejudice, it resulted in an appealable
final order under 28 U.S.C. § 1291. A dismissal for failure to make a prima facie showing of
personal jurisdiction is reviewed de novo.12 Thus, Plaintiff has not asserted any valid basis to
alter or amend his judgment and his motion is denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion to Alter
Judgment (Doc. 40) is denied.
IT IS SO ORDERED.
Dated: September 30, 2019
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

10

Walker v. THI of N.M. at Hobbs Center, 801 F. Supp. 2d 1128, 1141 (D. N.M. 2011) (citation omitted).
See Herman v. Cataphora, Inc., 730 F.3d 460, 463–64 (5th Cir. 2013).
11

Doc. 38 at 2–8.

12

Old Republic Ins. Co. v. Cont’l Motors, Inc., 877 F.3d 895, 903 (10th Cir. 2017).

3