Kigera v. Bethesda Lutheran Communities

Filing 35

MEMORANDUM AND ORDER denying 32 Defendant's Motion for Consideration of Evidence Under Rule 7.3 and for Leave to Correct the Record to Reflect Discovery Served on Defendant insofar as it is a motion to reconsider, and finding the motion moot insofar as it seeks permission to supplement the record. Signed by Magistrate Judge Teresa J. James on 7/21/2017. (ts)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CAROLYNE KIGERA,
Plaintiff,
v.
BETHESDA LUTHERAN COMMUNITIES,
Defendant.

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) Case No.: 16-cv-02547-JTM-TJJ
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MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Consideration of Evidence
Under Rule 7.3 and for Leave to Correct the Record to Reflect Discovery Served by Defendant
(ECF No. 32). Despite its title, the motion seeks reconsideration of the Court’s order granting
Plaintiff’s Motion for Jury Trial.1 Plaintiff has filed no response. For the reasons set forth
below, the Court denies the motion.
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 only
appropriate where the Court has obviously misapprehended a party’s position, the facts or
applicable law, or where the party produces new evidence that it could not have obtained earlier
through the exercise of due diligence.2 A motion to reconsider is not a second opportunity for
the losing party to make its strongest case, to rehash arguments or to dress up arguments that
previously failed.3 A party’s failure to present its strongest case in the first instance does not
1

Plaintiff’s motion is ECF No. 27; the Court’s order granting the motion is ECF No. 31.

2

Comeau v. Rupp, 810 F. Supp. 1172, 1174-75 (D. Kan. 1992).

3

Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994).

entitle it to a second chance in the form of a motion to reconsider.4 Whether to grant a motion to
reconsider is left to the Court’s discretion.
Although the motion title suggests Defendant offers newly available evidence for the
Court’s consideration, Defendant neither addresses the Rule 7.3 standard nor indicates how the
facts it raises constitute relevant evidence. Indeed, Defendant indicates complete agreement with
the Court’s recitation of the relevant background of the case.
In its order granting Plaintiff’s motion for jury trial, the Court noted that Defendant has
served no written discovery and has noticed no depositions.5 Defendant agrees that neither party
filed a notice to show service of discovery requests or responses, and that no depositions have
been taken. The entirety of Defendant’s argument is to ask the Court to consider that it served
written discovery to Plaintiff on January 26, 2017 while she was proceeding pro se, and that on
March 20, 2017 (after Plaintiff obtained counsel and two months before her request for jury trial)
she responded to the discovery. However, Defendant does not explain how this written
discovery has any bearing on whether Plaintiff should be afforded a jury trial. The Court
presumes Defendant was satisfied with Plaintiff’s responses because Defendant filed no motion
to compel within the 30-day window permitted by D. Kan. Rule 37.1.
4

Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005).

5

ECF No. 31 at 3. The Court’s statement was incomplete. The docket sheet does show
Defendant served written discovery on Plaintiff while she was pro se (ECF No. 14). However,
as the record does not contain evidence that Plaintiff served responses while she was pro se or
that her counsel filed responses after he entered his appearance, the Court inadvertently omitted
reference to the former. In its motion, Defendant also overlooks its own notice. ECF No. 32 at 2
(“The Court is correct that the docket does not reflect a certificate of service for the service of
Bethesda’s discovery.”), at 4 (“Unfortunately, the court is correct the record does not reflect
Bethesda’s service of the discovery or Plaintiff’s service of her responses.”). As the discovery is
not relevant to Defendant’s motion to reconsider, however, the Court mentions it only to
recognize the omission.

2

Defendant points out that in opposing Plaintiff’s request for jury trial, it had relied on
Plaintiff’s affirmative choice while pro se to forgo a jury trial, and not on Plaintiff’s
inadvertence.6 The Court understood as much and agreed that Plaintiff waived her right to jury
trial.7 But as the Court also noted, a finding of waiver is not dispositive of the issue:
Under Rule 39(b), however, the court has discretion to order a jury trial later upon
motion of a party, notwithstanding the party’s failure to make a timely demand for
a jury trial. The discretion afforded by Rule 39(b) is very broad and in the
absence of strong and compelling reasons to the contrary, a district court should
exercise its discretion to grant a jury trial.8
Defendant has never argued that granting Plaintiff a jury trial will force Defendant to
amend or supplement discovery. Indeed, at the time Defendant filed its motion, counsel were in
the process of scheduling Plaintiff’s deposition.9 Nor does Defendant point to new evidence, in
spite of the title of its motion, which would meet its burden to demonstrate strong and
compelling reasons why this Court should exercise its discretion to deny a party a right to jury
trial. In sum, no link exists between Defendant’s discovery and Plaintiff’s right to jury trial, and
Defendant offers no other basis for its motion. Defendant’s motion does not demonstrate that the
Court has obviously misapprehended its position, the facts or applicable law, nor does it produce
new evidence that it could not have obtained earlier through the exercise of due diligence
Accordingly, the Court declines to reconsider its order granting Plaintiff’s motion for jury trial.10
IT IS THEREFORE ORDERED THAT Defendant’s Motion for Consideration of
6

ECF No. 32 at 3.

7

See Memorandum and Order (ECF No. 31) at 2-3 (quoting Tenth Circuit case law holding that
failure to timely assert jury demand acts as waiver, and finding Plaintiff’s demand untimely.).
8

Id.

9

Id. at 4.

10

The Court also finds the motion moot insofar as it seeks permission to supplement the record
with certificates of service reflecting the discovery served by Defendant.
3

Evidence Under Rule 7.3 and for Leave to Correct the Record to Reflect Discovery Served by
Defendant (ECF No. 32) is denied.
Dated this 21st day of July, 2017, at Kansas City, Kansas.

s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge

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