Smith v. TFI Family Services, Inc.

Filing 187

MEMORANDUM AND ORDER denying 181 Motion to Alter or Amend. Plaintiff's additional request for Rule 54(b) certification is DENIED. Signed by District Judge John W. Broomes on 2/5/2020. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

COURTNEY SMITH,
Plaintiff,
v.

Case No. 17-2235-JWB

TFI FAMILY SERVICES, INC., et al.,
Defendant.

MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s motion to alter or amend the court’s
Memorandum and Order of November 14, 2019, Doc. 179. (Doc. 181.) The motion is fully briefed
and is ripe for review. (Docs. 182, 183, 185, 186.) For the reasons stated herein, the motion to
alter or amend is DENIED.
I. Standard
A motion to reconsider a dispositive order must be asserted pursuant to Fed. R. Civ. P.
59(e) or 60. D. Kan. R. 7.3.1 Plaintiff cites Rule 59(e) in support of her motion. (Doc. 182 at 1.)
“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.” Jenny Yoo Collection, Inc. v. Essense of
Australia, Inc., No. 17-CV-2666-JAR-GEB, 2019 WL 2717167, at *2 (D. Kan. June 28, 2019)
(citing Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017)). A
motion to reconsider a prior ruling “is not appropriate to revisit issues already addressed or advance

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There is conflicting caselaw on whether a partial summary judgment ruling of the type at issue is “dispositive” within
the meaning of D. Kan. R. 7.3, but Defendants do not dispute the point here.

arguments that could have been raised in prior briefing.” Rezac Livestock Comm. Co., Inc. v.
Pinnacle Bank, 2019 WL 2613179, *9 (D. Kan. June 26, 2019) (citations omitted). It is appropriate
only “where the court has misapprehended the facts, a party’s position, or the controlling law.” Id.
See Holick v. Burkhart, No. 16-1188-JWB, 2019 WL 3801646, at *1 (D. Kan. Aug. 13, 2019).
II. Analysis
In its prior order, the court determined that Plaintiffs’ § 1983 claim against the Individual
Defendants accrued, at the latest, by October of 2009. (Doc. 179 at 12.) The court so found
because Plaintiff knew of her injuries by that date and because a reasonable person would have
known by that date that the Kansas Department of Children and Families (DCF) may have caused
or contributed to the injuries. (Id. at 11.) Based on that date of accrual and the tolling provisions
of K.S.A. 60-515(a), the court found that Plaintiff’s claim against the Individual Defendants was
barred by the applicable statute of limitations. (Id. at 13-14.) Plaintiff argues the court should
reverse its ruling to correct clear error or prevent manifest injustice. (Doc. 182 at 13.) She argues
the court erred by analyzing the accrual of Plaintiff’s § 1983 claim under a “reasonable person”
standard instead of a “reasonable child” standard, given that Plaintiff was only nine years old at
the time of the alleged abuse. (Id. at 3.) This argument fails to show either clear error or manifest
injustice.
The Tenth Circuit has regularly applied the “reasonable person” standard in determining
the accrual of federal claims. See Nicholas v. Boyd, 317 F. App’x 773, 778 (10th Cir. 2009) (“The
test is an objective one, with the focus ‘on whether the plaintiff knew of facts that would put a
reasonable person on notice that wrongful conduct caused the harm.’”) (quoting Alexander v.
Oklahoma, 382 F.3d 1206, 1216 (10th Cir. 2004)). Neither the Tenth Circuit nor the Supreme
Court has ever endorsed the “reasonable child” standard advocated by Plaintiff.

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Plaintiff

effectively concedes as much by arguing the issue is one “of first impression” in the Tenth Circuit.
(Doc. 182 at 3.) The court’s application of an established Tenth Circuit standard instead of one
that neither the Tenth Circuit nor the Supreme Court has ever suggested, let alone endorsed, does
not rise to the level of “clear error” under Rule 59(e).
Nor does Plaintiff’s argument demonstrate manifest injustice. Plaintiff contends it is unjust
to find that a minor’s claim has accrued in circumstances where a minor cannot comprehend the
circumstances of an injury the way an adult would. But that concern is precisely why states such
as Kansas have enacted special tolling rules applicable to minors. Cf. Kana v. United States, No.
04-21947, 2006 WL 2988448, at *2 (D. S.C. Oct. 17, 2006) (“The plaintiffs’ allegations that their
immaturity prevented them from understanding that Arpaio had injured them provides the public
policy for adopting a provision tolling the limitations period while a plaintiff is a minor. However,
Congress has chosen not to adopt such a provision.”) The court applied the Kansas tolling rule for
minors in this case - K.S.A. 60-515(a) - as it was required to do. Bd. of Regents of Univ. of State
of New York v. Tomanio, 446 U.S. 478, 484 (1980) (“In § 1983 actions … a state statute of
limitations and the coordinate tolling rules are more than a technical obstacle to be circumvented
if possible. In most cases, they are binding rules of law.”) The effect of the tolling provision was
to give Plaintiff approximately nine years2 after her claim first accrued – including one year after
she reached the age of majority – in which to file her claim. The court’s application of that
provision to bar Plaintiff’s claim, in accordance with the terms of 60-515(a), does not amount to
manifest injustice and is not inconsistent with federal law. As the Supreme Court noted:
Any period of limitation . . . is understood fully only in the context of the various
circumstances that suspend it from running against a particular cause of action.
Although any statute of limitations is necessarily arbitrary, the length of the period
allowed for instituting suit inevitably reflects a value judgment concerning the point
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As the court noted in its prior order, it need not decide here whether the eight-year statute of repose in K.S.A. 60515(a) would otherwise bar the claim.

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at which the interests in favor of protecting valid claims are outweighed by the
interests in prohibiting the prosecution of stale ones. In virtually all statutes of
limitations the chronological length of the limitation period is interrelated with
provisions regarding tolling, revival, and questions of application. In borrowing a
state period of limitation for application to a federal cause of action, a federal court
is relying on the State's wisdom in setting a limit, and exceptions thereto, on the
prosecution of a closely analogous claim.
Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 463-64 (1975).
Plaintiff additionally argues the court “incorrectly concluded Plaintiff missed her one-year
window to bring her claims after she turned 18.” (Doc. 182 at 9.) This argument is apparently
premised on an assumption that Plaintiff’s claim against the Individual Defendants did not accrue
until April 23, 2019, when she filed a claim against TFI. (Id.) The court rejects that assumption
for reasons discussed at length in its prior Memorandum and Order, and likewise rejects the
argument that it was clear error to find that Plaintiff missed the one-year window for filing in
K.S.A. 60-515(a).

In sum, Plaintiff has shown no grounds for alteration or amendment of the

Memorandum and Order.
Rule 54(b) certification. Plaintiff asks the court to certify its prior Memorandum and Order
as a final judgment under Rule 54(b) to permit an immediate appeal of the ruling. (Doc. 182 at
10.) Having considered the circumstances of the case, the court declines to do so.
Rule 54(b) provides that a court may direct entry of a final judgment as to one or more, but
fewer than all, of the claims or parties “only if the court expressly determines that there is no just
reason for delay.” See Fed. R. Civ. P. 54(b). “The purpose of Rule 54(b) ‘is to avoid the possible
injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of
the parties until the final adjudication of the entire case by making an immediate appeal available.’”
Oklahoma Tpk. Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001) (quoting 10 Charles A.
Wright et al., Federal Practice and Procedure: Civil 2d § 2654 at 33 (1982)).

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The court is not persuaded that an immediate appeal of the ruling on the statute of
limitations, as applied to the Individual Defendants, would promote the efficient resolution of this
case. “Not all final judgments on individual claims should be immediately appealable, even if they
are in some sense separable from the remaining unresolved claims.” Curtiss-Wright Corp. v. Gen.
Elec. Co., 446 U.S. 1, 8 (1980). Rule 54(b) requires the court to act as a “dispatcher,” using its
discretion to determine the appropriate time when each final decision in a multiple-claim or
multiple-party case is ready for appeal, considering the “interest of sound judicial administration.”
Id. (citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435-37 (1956)). Plaintiff argues
certification would serve judicial administration “by having one trial with all parties rather than
piecemeal trials.” (Doc. 182 at 11.) This suit concerns events that took place in 2009 and before.
If the remaining claims against TFI are to be tried, there is a significant interest in avoiding any
additional delay in getting the matter to trial. If instead the claims against TFI are resolved by
pretrial motions, then a joint appeal of all issues, including the statute of limitations, would present
the most efficient disposition of the case. Cf. Curtiss-Wright Corp., 446 U.S. at 8 (consideration
of judicial administrative interests assures that application of Rule 54(b) “preserves the historic
federal policy against piecemeal appeals.”) Under the circumstances, the court concludes the
request for Rule 54(b) certification should be denied.
III. Conclusion
IT IS THEREFORE ORDERED this 5th day of February, 2020, that Plaintiff’s motion to
alter or amend (Doc. 181) is DENIED. Plaintiff’s additional request for Rule 54(b) certification
is DENIED.
_____s/ John W. Broomes__________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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