McCormick v. Roberts et al
MEMORANDUM AND ORDER denying 98 Motion for Reconsideration re 91 Order on Motion to Stay Discovery. Signed by Magistrate Judge James P. O'Hara on 8/16/2012. Mailed to pro se party Dale E. McCormick by regular mail. (est)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DALE E. MCCORMICK,
RAY ROBERTS, et al.,
Case No. 11-3130-MLB
This case comes before the undersigned U.S. Magistrate Judge, James P. O’Hara,
on a motion (doc. 98) filed by pro se plaintiff, Dale McCormick, for reconsideration of an
order that granted defendants’ requested stay of pretrial proceedings in this case (doc.
91). For the reasons set forth below, the motion for reconsideration is denied.
As a preliminary matter, the court notes sua sponte that it has jurisdiction to
address plaintiff’s motion for reconsideration. On May 25, 2012, plaintiff filed a notice
of interlocutory appeal of the court’s orders denying his motion for a preliminary
injunction (doc. 6) and denying his motion to alter or amend the denial of a preliminary
injunction (doc. 61).
Usually the filing of an appeal divests the district court of
jurisdiction. But during the pendency of a plaintiff’s appeal of the denial for preliminary
injunction, this district court retains jurisdiction to act on matters not involved in the
appeal and to proceed with the action on the merits.1 Alternatively, the district court
retains jurisdiction as Mr. McCormick’s appeal appears to have been untimely filed. 2 As
such, this court has jurisdiction to address this matter.
II. Motion for Reconsideration
On June 29, 2012, the undersigned granted defendants’ motion to stay discovery
(doc. 91). In their request for a stay, defendants argued that their motion for summary
judgment raised the defense of qualified immunity, and, as such, a stay should be issued
pending a ruling on that motion by the presiding U.S. District Judge, Monti L. Belot. The
court recognized the broad protection afforded by qualified immunity, including the right
“‘to avoid the burdens of such pretrial matters as discovery.’”3
defendants’ motion for summary judgment and memorandum in support, however, the
court noted that a number of defendants’ arguments extended beyond purely legal
questions and required plaintiff to submit proof regarding factual disputes. As such, the
undersigned issued a stay only until Judge Belot ruled on plaintiff’s pending motion to
permit limited discovery under Fed. R. Civ. P. 56(d).
Colorado v. Idarado Min. Co., 916 F.2d 1486, 1490 n.2 (10th Cir. 1990); Garcia v.
Burlington N. R.R. Co., 818 F.2d 713, 721 (10th Cir. 1987).
See United States v. Hargrove, No. 03-20192, 2005 WL 2122650, at *1 (D. Kan. Aug.
25, 2005) (citing Arthur Andersen & Co. v. Finsesilver, 546 F.2d 338, 340 (10th Cir.
1976)) (court may ignore notice of appeal if it is deficient for untimeliness).
See Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001) (quoting Behrens v.
Pelletier, 516 U.S. 299, 308 (1996)); see also Harlow v. Fitzgerald, 457 U.S. 800, 818
In the instant motion for reconsideration, plaintiff contends that: (1) the stay rests
on a clearly erroneous legal premise; (2) the stay rests on a clearly erroneous factual
premise; and (3) the stay sweeps too broadly (doc. 98, at 1).
D. Kan. Rule 7.3 permits a party to file a motion seeking reconsideration of a
The motion 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.”4 The decision whether to grant or deny a motion for
reconsideration is committed to the court’s discretion.5 A motion for reconsideration is
appropriate if the court “has obviously misapprehended a party’s position on the facts or
the law.”6 However, a motion to reconsider should not be used to “rehash previously
rejected arguments or to offer new legal theories or facts.”7 Such a motion “is not a
second chance for the losing party to make its strongest case or to dress up arguments that
D. Kan. Rule 7.3(b).
Wright ex rel. Trust Co. of Kan. v. Abbott Lab.’s, Inc., 259 F.3d 1226, 1235-36 (10th
Hammond v. City of Junction City, Kan., 168 F. Supp. 2d 1241, 1244 (D. Kan. 2001)
(quoting Sithon Mar. Co. v. Holiday Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998)).
Theno v. Tonganoxie Unified Sch. Dist. No. 464, 377 F. Supp. 2d 952, 976 (D. Kan.
2005) (quoting Demster v. City of Lenexa, Kan., 359 F. Supp. 2d 1182, 1184 (D. Kan.
Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994) (citing OTR
Driver at Topeka Frito-Lay, Inc.’s Distrib. Cr. v. Frito-Lay, Inc., No. 91-4193, 1993 WL
302203, at *1 (D. Kan. July 19, 1993)).
Here, plaintiff does not seek reconsideration based on an intervening change in
controlling law or the availability of new evidence. Instead, he seems to argue that
reconsideration is warranted to correct clear error or prevent manifest injustice.
A. Stay Rests on a Clearly Erroneous Legal Premise
First, plaintiff argues that it is clearly established that his exposure to lead-based
paint was a constitutional violation. This argument goes to the merits of the defendants’
summary judgment motion pending before the presiding judge, not to the issue of
whether this court should reconsider its order to stay all pretrial matters in this case.
Accordingly, plaintiff has failed to provide a basis for reconsideration.
B. Stay Erroneous As To Count VII9
Second, plaintiff argues that because qualified immunity is not applicable to
Counts I and VII of his complaint, the stay should be nullified as to those counts.
Plaintiff acknowledges that he failed to previously raise this argument before the court.
“A motion for reconsideration is not an opportunity for a party to repackage
arguments or present new arguments.”10 This argument was previously available to
plaintiff, and he failed to raise it. Accordingly, plaintiff’s new argument provides no
basis for reconsideration.
C. Stay Sweeps Too Broadly
Plaintiff entitles this claim: “Stay Rests on Clearly Erroneous Factual Premise.” The
court, however, finds the claim addresses a legal question rather than a factual question.
Luehrman v. United States, No. 10-2360, 2011 WL 4499348, at *1 (D. Kan. Sept. 27,
Third, plaintiff contends that the court’s stay sweeps too broadly. He notes that
defendants moved to stay discovery (doc. 85), but the court stayed “[a]ll pretrial
proceedings in this case, including discovery” (doc. 91, at 4). As such, plaintiff seeks to
limit the stay to discovery matters so that the court may rule on other pretrial
proceedings. Specifically, plaintiff states that he plans to file a Motion for Preliminary
Injunction Regarding Count VII. In response, defendants argue that until the preliminary
question of qualified immunity is resolved, their defense relieves them from not only
discovery, but also from the other burdens of litigation.
In addition to the present motion, plaintiff currently has eight other motions
pending in this case (docs. 74, 76-78, 80, 88, 90, and 93). Each of these motions deals
directly with discovery matters, that is, determining whether the facility where plaintiff is
held contains asbestos and/or lead-based paint and determining whether plaintiff has been
exposed to asbestos and/or lead-based paint.
Moreover, Count VII of plaintiff’s
complaint seeks “an immediate injunction requiring defendant[s] . . . to arrange for
plaintiff to be tested by an independent laboratory . . . for both lead and asbestos
exposure” (doc. 1, at 13).
As such, any future motion for preliminary injunction
regarding Count VII filed by plaintiff will undoubtedly be tied to discovery matters.
As noted when granting the stay in this matter,
Plaintiff has filed a Fed. R. Civ. P. 56(d) motion, asking the presiding U.S.
District Judge, Monti L. Belot, to defer consideration of the summary
judgment motion and permit him to obtain discovery into these factual
disputes (doc. 90).
The undersigned certainly does not wish to interfere with Judge
Belot’s decision as to what discovery he finds necessary to reach his ruling
on the summary judgment motion. Judge Belot might decide that summary
judgment should be granted—without further discovery—based on a
finding that defendants are entitled to qualified immunity because the law is
not clearly established. Or Judge Belot might decide that further discovery
is necessary before he can reach a decision on the summary judgment
motion. Therefore, by this order, the undersigned stays discovery only until
Judge Belot has an opportunity to issue a ruling on plaintiff’s Rule 56(d)
(doc. 91, at 3) (emphasis in original). Based on the same reasoning, the court is not
persuaded that the stay sweeps too broadly. In spirit, each of the motions filed by
plaintiff, as well as the motion he states he plans to file, are directly tied to discovery
matters. As such, addressing them at this juncture would be a waste of judicial resources.
IT IS THEREFORE ORDERED that plaintiff’s motion for reconsideration (doc.
98) is denied.
Dated August 16, 2012, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?