Armour v. Universal Protection Services

Filing 13

MEMORANDUM AND ORDER denying 11 Motion for Reconsideration. Signed by District Judge Daniel D. Crabtree on 8/29/17. Mailed to pro se party Sheila L. Armour by regular mail. (kao)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHEILA L. ARMOUR,
Plaintiff,
v.

Case No. 17-02227-DDC-GLR

UNIVERSAL PROTECTION SERVICES,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the court on plaintiff Sheila Armour’s Motion for
Reconsideration (Doc. 11). Following plaintiff’s Motion for Leave to Proceed in Forma
Pauperis (Doc. 3), Magistrate Judge Rushfelt issued a Report and Recommendation under Fed.
R. Civ. P. 72 (Doc. 5). He recommended dismissal of this action for failure to state a claim upon
which relief may be granted. Doc. 5 at 5. Ms. Armour objected to this Report (Doc. 8), but the
court overruled her objection, adopted Judge Rushfelt’s Report and Recommendation, and
dismissed the action. Doc. 9 at 4. Then, Ms. Armour filed her timely Motion for
Reconsideration. For reasons described below, the court denies plaintiff’s motion.
I.

Motion for Reconsideration
Ms. Armour contends she is entitled to reconsideration because she was not given a fair

trial and that it is her Fourth Amendment right to plead her case to a judge.1 Doc. 11 at 1. “A
party may file a motion asking a judge . . . to reconsider an order or decision made by the judge
. . . .” D. Kan. Rule 7.3. “Parties seeking reconsideration of dispositive orders or judgments
must file a motion pursuant to Fed. R. Civ. P. 59(e) or 60.” Id. 7.3(a). Ms. Armour does not
1

The court construes these arguments together to assert a right to trial by jury under the Seventh
Amendment. See U.S. Const. amend. VII.

explicitly identify which rule she invokes to seek reconsideration. But, the court understands her
motion to request reconsideration under Fed. R. Civ. P. 60.
This rule provides:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6) any other reason that
justifies relief.
Fed. R. Civ. P. 60(b). Ms. Armour’s motion never asserts any of the reasons outlined in
Fed. R. Civ. P. 60(b)(1)–(5). Therefore, the court interprets her request under the broad
reach of subsection (6)—any other reason that justifies relief. Asserting a right to a jury
trial does not justify relief from the court’s judgment. For one thing, Ms. Armour
explicitly disclaimed a desire to have her case tried to a jury. See Doc. 1 at 5 (Ms.
Armour checked “no” where her form complaint inquired if she wanted a jury trial). But
even when demanded properly,2 the Seventh Amendment3 does not entitle every litigant
to a jury trial in every case. Had Ms. Armour’s case progressed, she could have received
a jury trial. But by failing to state a claim upon which relief may be granted, Ms. Armour
failed to satisfy the legal prerequisites for a trial. So, the action was dismissed, and
nothing in the Seventh Amendment justifies relief from that dismissal. The court thus
denies Ms. Armour’s Motion for Reconsideration.

2

See Fed. R. Civ. P. 38.

3

“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the
United States, than according to the rules of the common law.” U.S. Const. amend. VII.

2

II.

Conclusion
For reasons discussed above, the court denies plaintiff’s Motion for Reconsideration

(Doc. 11).
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff Sheila Armour’s
Motion for Reconsideration (Doc. 11) is denied.
IT IS SO ORDERED.
Dated this 29th day of August, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

3