Muathe et al v. Fleming et al

Filing 82

MEMORANDUM AND ORDER denying 70 Motion for Reconsideration. Signed by District Judge Julie A. Robinson on 03/27/2017. (cv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KASEY KING,
Plaintiff,
Case No. 16-2108-JAR-GLR

v.
LORI FLEMING, ET AL.,
Defendants.

MEMORANDUM AND ORDER
On January 27, 2017, this Court entered a Memorandum and Order imposing sanctions
and dismissing this case in its entirety based on Plaintiff and his counsel’s conduct in attaching
and incorporating into his Second Amended Complaint (“SAC”) an admittedly manipulated
email, and based on counsel’s failure to conduct a reasonable inquiry into the veracity of the
exhibit containing the email (Doc. 64). This matter comes before the Court on Plaintiff’s
Motion to Alter or Amend Order Dismissing Plaintiff’s Action, Imposing Sanctions, and Order
for Clarification (Doc. 70). Plaintiff requests that the Court reconsider its dismissal of the case
and imposition of sanctions, and re-open the case to allow discovery as to the authenticity of an
email that Defendant Lori Fleming’s counsel sent to Plaintiff’s counsel. The motion is fully
briefed and the Court is prepared to rule. For the reasons explained below, the Court denies
Plaintiff’s motion.
I.

Background
The Court has repeatedly recited the procedural history and factual allegations at issue in

this case in previous orders.1 A brief summary of each, however, is necessary to resolve this

1

See Docs. 34 & 64.

1

matter. Plaintiff Kasey King and thirty additional Plaintiffs filed a Complaint and Amended
Complaint against Defendants Judge Lori Fleming, Judge Kurtis Loy, My Town Media, Inc., and
Joe Manns, alleging various civil rights and state law claims based on the alleged removal of
Plaintiffs’ radio advertisements. The advertisements were designed to garner support for a
signature drive campaign to remove Defendants Fleming and Loy from their positions as state
judges. Plaintiffs alleged Judges Fleming and Loy used their status as judges to order Defendants
to remove the advertisements. Defendants each filed motions to dismiss. Without seeking leave
of Court or Defendants’ consent, Plaintiffs filed their SAC on July 27, 2016. The SAC added
allegations regarding Judges Fleming and Loy’s use of their official positions to persuade
Defendants Wachter and My Town to take Plaintiffs’ radio advertisement off the air. Relevant to
this matter, the SAC alleged the following:
48. Meanwhile, in furtherance of the agreement and conspiracy between Fleming
and Loy to infringe on plaintiffs’ constitutional rights, defendant Fleming on
February 19, 2015, willfully and intentionally prepared [sic] wrote an email to
defendant Wachter, and for maximum effects, deliberately use [sic] her (Fleming)
official court assigned e-mail account, which essentially states as follows:
“Bill Wachter, is this your station? Kurt is saying Eric Muathe and posse
cometaut (sic) have an ad on this station to oust all the judges. I would just
like to know since my kids were listening when I heard the ad this
morning on my way to work. If so, get it off.” (See Exhibit 2 – unofficial
version of defendant Fleming email to defendant Wachter).2
Plaintiffs attached two exhibits to their SAC. The second exhibit (“Exhibit 2”), which
Plaintiffs referred to as an “unofficial version of defendant Fleming email to defendant
Wachter,” appeared to be a portion of an email written by Judge Fleming.3 The only text visible
on the underlying document stated “Is this your station? Kurt is saying Eric Muathe and posse
cometaut have an ad on this station to oust all the judges. I would just like to know since my

2

Doc. 14 at 9 (alterations in brackets added).

3

Doc. 14-2.

2

kids . . . .”4 The remainder of the message was not shown. However, included in the exhibit was
superimposed text that appeared to suggest what the entirety of the message stated:
[Bill Wachter] is this your station? Kurt [Judge Kurtis l. Loy] is saying Eric
Muathe and posse cometaut [sp] have an ad on this station to oust all the judges. I
would just like to know since my kids [were listening when I heard the ad this
morning on my way to work. If so, get it off].5
Defendants filed motions to strike the Second Amended Complaint and Plaintiffs filed a Motion
for Leave to File SAC Nunc Pro Tunc.
On November 17, 2016, the Court entered a Memorandum and Order granting
Defendants’ motions to strike and granting Plaintiff King leave to amend as to Counts 3, 4, and 6
of his SAC.6 Plaintiff King filed his SAC on November 28, 2016.7 In the SAC, Plaintiff included
the allegation described above regarding the alleged email from Judge Fleming to Defendant
Wachter. Plaintiff also attached to this Complaint Exhibit 2, the document reflecting a portion of
an email with superimposed text.
On December 1, 2016, Defendants Loy and Fleming submitted a “Golden Rule Letter”
along with an unfiled Rule 11 Motion and supporting memorandum to Plaintiff King and his
counsel, Adebayo Ogunmeno.8 Attached to the unfiled memorandum in support of sanctions
was an exhibit that Defendants represented was the true email from Judge Fleming to Defendant
Wachter, sent on February 19, 2015.9 The email stated, “Is this your station? Kurt is saying Eric
Muathe and posse cometaut have an ad on this station to oust all the judges. I would just like to

4

Id.

5

Id.; Doc. 37-2 (alterations in original).

6

Doc. 34 at 28–29. The Court later amended its ruling by further limiting Plaintiff’s amendments as to his
tortious interference with contractual relations claim and by dismissing Joe Manns from this case. Doc. 36.
7

Doc. 37.

8

Doc. 38.

9

Docs. 45-1 & 45-3.

3

know since my kids watch Colgran live through this station. Thanks.”10 Defense counsel
Stephen Phillips apparently sent a .msg file containing the email to Mr. Ogunmeno on December
12, 2016.11 Defendants explained in their golden rule letter that they would not file the motion
for sanctions if Plaintiff withdrew the SAC or agreed to dismissal within twenty-one days of
service of the letter.
Plaintiff did not withdraw the SAC or agree to dismissal, and Defendants filed their
Motion for Sanctions on December 22, 2016.12 In responding to the motion, Plaintiff’s counsel,
Mr. Ogunmeno, admitted that he received Exhibit 2 from former plaintiff Eric Muathe, that Mr.
Muathe had inserted the superimposed text into Exhibit 2, and that Mr. Ogunmeno attached the
Exhibit to the SAC.13 On January 27, the Court entered a Memorandum and Order granting
Defendants’ motion for sanctions.14 The Court detailed the conduct of Plaintiff King and former
Plaintiffs Muathe and Travis Carlton in manipulating Exhibit 2 and presenting it to the Court in
support of their SAC. The Court also summarized Mr. Ogunmeno’s conduct in receiving Exhibit
2, attaching it to the SAC, incorporating the superimposed text into the SAC without conducting
any inquiry into the veracity of Exhibit 2, and failing to indicate anywhere in the SAC that the
quoted text from Exhibit 2 did not originate from the true email.15 After considering the conduct
described above, the purposes to be served by sanctions, and other factors, the Court found that
sanctions must include dismissal of this case in its entirety with prejudice, as well as imposition

10

Id. at 1.

11

Doc 70-3 at 4; Doc. 71 at 1.

12

Doc. 44.

13

Doc. 60 at 2–3.

14

Doc. 64.

15

Id. at 10–12.

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of reasonable attorney’s fees and costs, to “deter repetition of the conduct or comparable conduct
by others similarly situated.”16
II.

Discussion
D. Kan. Rule 7.3(b) governs motions to reconsider non-dispositive orders, while Fed. R.

Civ. P. 59 and 60 govern motions to reconsider dispositive orders.17 Defendant moves pursuant
to Rule 59(e), and the Court finds this standard appropriate, given that the Court’s Memorandum
and Order was dispositive of this case. Under Rule 59(e), grounds warranting a motion to
reconsider include: (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.18 “Thus, a motion
for reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law.”19 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.20 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.21 Whether to grant a motion to
reconsider is left to the Court’s discretion.22

16

Id. at 12–17.

17

D. Kan. Rule 7.3; Coffeyville Res. Ref. & Mktg., LLC v. Liberty Surplus Ins. Corp., 748 F. Supp. 2d 1261,
1264 (D. Kan. 2010).
18

Servants of Paracelete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark Corp. v. Samson
Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995)).
19

Id.

20

Steele v. Young, 11 F.3d 1518, 1520 n.1 (10th Cir.1993); see also Charles Alan Wright, et al., Federal
Practice & Procedure: Civil 2d § 2810.1 (“The Rule 59(e) motion may not be used . . . to raise arguments or present
evidence that could have been raised prior to the entry of judgment.”).
21

Turner v. Nat’l Council of State Bds. of Nursing, Inc., No. 11-2059-KHV, 2013 WL 139750, at *1–2 (D.
Kan. Jan. 10, 2013) (citing Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005),
aff'd, 191 F. App’x 822 (10th Cir. 2006)).
22

Coffeyville, 748 F. Supp. 2d at 1264 (citing In re Motor Fuel Temp. Sales Practices Litig., 707 F. Supp.
2d 1145, 1166 (D. Kan. 2010)).

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Plaintiff argues that the Court should reconsider its Memorandum and Order and re-open
this case based on what Plaintiff asserts is “newly discovered and unavailable evidence.”23
Plaintiff states that three forensic experts analyzed the .msg file that contained the email defense
counsel sent to Plaintiff’s counsel on December 1, 2016, which Defendants claim is the true
email from Judge Fleming to Defendant Wachter. Plaintiff points to the reports of these experts,
which highlight several purported inconsistencies between the metadata of the .msg file and
information contained in the email. For example, the date line of the .msg file does not match
the composition date of the email, and defense counsel’s name, rather than that of Judge
Fleming, appears in the “Last Modifier Name” field of the .msg file.24 Plaintiff argues that these
inconsistencies demonstrate that defense counsel likely modified or tampered with the email, and
thus the Court should re-open this case and allow for further discovery into the authenticity of
the email. Plaintiff also cites portions of Defendants’ Answer to Plaintiff’s SAC, in which
Defendants admit that they had second-hand knowledge of the radio advertisements at the time
the email was sent, that they knew there was a signature drive for a grand jury investigation, and
that they knew Plaintiffs had previously participated in judicial ethics complaints against Judge
Fleming.25
As an initial matter, the portions of Defendants’ Answers that Plaintiff cites do not
constitute “new evidence.” Defendants’ Answers are not evidence, but rather a form of
pleading.26 Additionally, Defendants filed their Answers to Plaintiff’s SAC on December 12,
2016 and December 22, 2016, more than one month before the Court ruled on Defendants’

23

Doc. 47.

24

Doc. 70 at 2–4.

25

Doc. 47.

26

Fed. R. Civ. P. 7(a)(2).

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motion for sanctions on January 27, 2017.27 The Court was aware of Defendants’ Answers at the
time it issued the Memorandum and Order imposing sanctions.
The Court is also not convinced that the expert reports—to the extent they constitute
“new evidence”—cast substantial doubt on the authenticity of the email defense counsel sent to
Mr. Ogunmeno on December 12, 2016. Attached to Defendants’ response to Plaintiff’s motion
is an affidavit of defense counsel Mr. Phillips, in which he states he (1) received the email in
question from Judge Fleming on December 12, 2016; (2) saved the email and burned it to a CD
on the same day without making changes to the text of the email; and (3) sent the CD to Mr.
Ogunmeno by overnight delivery.28 Mr. Phillips’ act in saving the email and burning the file to a
CD without making changes to the email reasonably explains why the medata of the .msg file on
the CD would not be consistent with the date and name contained in the email.
Although the affidavit of Mr. Phillips appears to explain the inconsistencies identified in
the experts’ reports, the Court need not engage in an analysis of the authenticity of the .msg file
and the December 12, 2016 email. The Court’s imposition of sanctions rested on a finding that
Plaintiff and his counsel knowingly presented to the Court as an exhibit a manipulated document,
incorporated text from the document into their SAC without identifying the text as fabricated,
and Plaintiff’s counsel submitted the SAC without performing a reasonable investigation into the
veracity of the Complaint’s allegations. The Court’s findings did not, contrary to Plaintiff’s
suggestion, rest on any finding as to the authenticity or veracity of the email Mr. Phillips sent to
Mr. Ogunmeno. Defendants’ admissions in their Answers and the apparent inconsistencies in
the December 12, 2016 email do nothing to cure the conduct of Plaintiff and Mr. Ogunmeno in
27

Docs. 41, 43, & 47. Plaintiff asserts that Defendants filed their Answers “[o]n or about the same time the
[C]ourt” issued its Memorandum and Order granting Defendants’ motion for sanctions. Doc. 70 at 4. As explained
above, that is not the case. Defendants filed their Answers well before the Court issued its motion for sanctions.
28

Doc. 71-1.

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submitting to the Court a Complaint that contained manipulated allegations without counsel
performing a reasonable inquiry into the allegations or the attached exhibit. In sum, Plaintiffs
have presented no “new evidence” that calls into question the factual basis of the Court’s ruling
on sanctions.
Plaintiff’s arguments reflect a fundamental failure to recognize the reasoning and purpose
behind the Court’s sanctions. Mr. Ogunmeno states that he “accept[s] responsibility for not
sufficiently paraphrase [sic] the use of Exhibit 2 attached to King’s [S]econd [A]mended
[C]omplaint as the [C]ourt pointed out in its decision.”29 The Court’s ruling on sanctions,
however, did not rest on a finding that Mr. Ogunmeno failed to correctly paraphrase the text of
Exhibit 2. Rather, as explained above, it rested on a finding of willful conduct of Plaintiff and
his counsel in incorporating a manipulated document into the SAC without performing a
reasonable inquiry under the circumstances.
Plaintiff additionally requests that, if the Court does not reconsider its ruling dismissing
this case, the Court dismiss his state law claims without prejudice. Plaintiff argues that “the
[C]ourt’s decision to dismiss the 42 U.S.C. § 1983 as well as the two state law claims is too hash
[sic] compare[d] to the misconduct needed to be deterred by Rule 11 punishment.”30 The Court,
however, detailed in its Memorandum and Order why dismissal of this case in its entirety with
prejudice was necessary to deter repetition of the conduct, given the severity of the misconduct
and the Court’s concern “that Mr. Ogunmeno [would] continue to abuse the judicial process by
using altered evidence in later stages of litigation and draining judicial resources.”31 Plaintiff
and Mr. Ogunmeno’s continued desire to litigate the authenticity of an email not relevant to the

29

Doc. 70 at 7.

30

Id. at 8.

31

Doc. 64 at 14.

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Court’s previous ruling, while not acknowledging the conduct that actually gave rise to
sanctions, demonstrates that they fail to appreciate the basis of the Court’s ruling on sanctions.
Because Plaintiff has not presented “new evidence” that negates the factual basis of the Court’s
ruling on sanctions, the Court denies Plaintiff’s motion to alter or amend the judgment.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff Kasey King’s
Motion to Alter or Amend Order Dismissing Plaintiff’s Action, Imposing Sanctions, and Order
for Clarification (Doc. 70) is denied.
IT IS SO ORDERED.
Dated: March 27, 2017
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

9