Dartez (ID 87393) v. Peters et al

Filing 586

MEMORANDUM AND ORDER granting 580 MOTION for Reconsideration. Signed by Chief District Judge Eric F. Melgren on 2/8/2022. (kas)

Case 5:15-cv-03255-EFM Document 586 Filed 02/08/22 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SAMUEL LEE DARTEZ, II,
Plaintiff,

vs.

Case No. 15-CV-03255-EFM-GEB

RICK PETERS, et al.,
Defendants.

MEMORANDUM AND ORDER
Before the Court is the Kansas Highway Patrol (“KHP”) Defendants’ Motion for
Reconsideration (Doc. 580). Plaintiff previously filed a Motion to Disclose Statements Made in
Mediation Settlement Negotiations (Doc. 576). The Court granted that motion without allowing
time for Defendants to respond. Now, Defendants ask the Court to reconsider this ruling. Because
the Court finds its earlier ruling was in error, the Court grants Defendants’ motion.
I.

Factual and Procedural Background

In short, this case is a civil rights action arising out of the circumstances of Plaintiff’s arrest,
during which he alleges he was brutally beaten by the arresting officers. The remaining facts and
intervening procedural history of this case does not concern the Court at this time, as only a few
of the most recent events are relevant to the instant motion.

Case 5:15-cv-03255-EFM Document 586 Filed 02/08/22 Page 2 of 6

On February 26, 2021, the Court denied the KHP Defendants’ motion for summary
judgment, which was based in part on a qualified immunity defense. Defendants filed an
interlocutory appeal of this decision. While the matter was on appeal, Plaintiff and Defendants
participated in a mediation conference pursuant to the Tenth Circuit’s Notice of Mediation under
10th Cir. R. 33.1. Defendants thereafter made an Offer of Judgement under Fed. R. Civ. P. 68,
which Plaintiff accepted. According to the terms of the Offer, on September 21, 2021, the Court
entered judgment “in the amount of Sixty Thousand Dollars ($60,000.00) plus reasonable
attorneys’ fees and costs allowed by law, which have been incurred to date in this cause and no
other relief.”
The parties thereafter entered into discussion regarding what, if any, attorney’s fees were
appropriate. During these discussions, Plaintiff became concerned that Defendants had reversed
their initial position, reflected in the Offer of Judgement, that attorneys’ fees should be in excess
of the $60,000 judgment, and instead that the $60,000 should be reduced by a portion of the
attorneys’ fees. To resolve this dispute, and in preparation for its forthcoming motion for
attorney’s fees, Plaintiff filed a motion seeking the Court’s approval to disclose statements made
in the appellate mediation conference. The Court granted that motion the day after it was filed.
Defendants now ask the Court to reconsider this decision.
II.

Legal Standard

Local Rule 7.3 governs motions to reconsider non-dispositive orders.1 Such a motion must
be based on “(1) an intervening change in controlling law; (2) the availability of new evidence; or

1

D. Kan. R. 7.3(b).

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(3) the need to correct clear error or prevent manifest injustice.”2 “The standards governing
motions to reconsider are well established. A motion to reconsider is appropriate where the court
has obviously misapprehended a party’s position or the facts or applicable law, or where the party
produces new evidence that could not have been obtained through the exercise of due diligence.”3
A motion to reconsider is not an appropriate method for a party to revisit issues already addressed
or to advance new arguments and supporting facts that were originally available.4 In other words,
“[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.”5 The decision regarding whether to grant or to deny
a motion for reconsideration is left within the sound discretion of the district court.6
III.

Analysis

The thrust of Defendants’ argument on this motion to reconsider is that the Court erred in
permitting Plaintiff to disclose statements made during the appellate mediation conference,
because Tenth Circuit local rules do not allow such disclosure. Tenth Circuit Rule 33.1 provides
that “[s]tatements made during the [mediation] conference and in related discussions, and any
records of those statements, are confidential and must not be disclosed by anyone . . . to anyone
not participating in the mediation process.”7 It follows from this rule, according to Defendants,

2

Id.

3

Eissa v. Aetna Life Ins. Co., 2011 WL 3611492, at *1 (D. Kan. 2011) (quoting Comeau v. Rupp, 810 F.
Supp. 1172, 1174–75 (D. Kan. 1992)).
4

Id.

5

Cline v. S. Star Cent. Gas Pipeline, Inc., 370 F. Supp. 2d 1130, 1132 (D. Kan. 2005) (quoting Sithon Mar.
Co. v. Holiday Mansion, 177 F.R.D. 504, 505 (D. Kan. 1998)).
6

Vanlerberghe v. Apfel, 2000 WL 360104, *1 (D. Kan. 2000) (citations omitted).

7

10th Cir. R. 33.1(D).

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that because the undersigned did not participate in the mediation process, disclosure of confidential
statements made during that process should be prohibited.
Plaintiff takes a different view. He believes that 10th Cir. Rule 33.1(D) does not address
the situation currently before the Court, where the parties have reached an agreement through the
mediation process but now disagree regarding the terms of that agreement. Further, Plaintiff cites
this Court’s local rule for the proposition that statements made during alternative dispute
resolution, while typically confidential, may be disclosed in certain limited circumstances.8
Plaintiff is mistaken. This Court’s own local rule, D. Kan. Rule 16.3, is inapplicable
because the mediation conference at issue took place not at this Court’s direction, but rather at that
of the Tenth Circuit. Thus, the Tenth Circuit rules appear applicable. And importantly, unlike this
Court’s rule, the Tenth Circuit rule does not provide exceptions to the general rule of
confidentiality, under which statements of parties participating in a mediation conference may be
properly disclosed.9

Rather, Rule 33.1 broadly states that “[s]tatements made during the

conference and in related discussions, and any records of those statements, are confidential and
must not be disclosed by anyone . . . to anyone not participating in the mediation process.” 10 The
rule does not appear to provide any avenues for the disclosure of such statements.11
This broad language, without any exceptions, leads the Court to conclude that even cases
in which the parties dispute the meaning of a purported settlement agreement that arose out of a

8

D. Kan. R. 16.3(i), (j).

9

For instance, subjection (j), on which Plaintiff’s original motion relied, provides that the general rule of
confidentiality does not prohibit “disclosure of an agreement, by all parties to the agreement, which appears to
constitute a settlement contract, if necessary in proceedings to determine the existence of a binding settlement
contract.” D. Kan. R. 16.3(j)(2). No analogous provisions exist in the Tenth Circuit rules.
10

10th Cir. Rule 33.1(D).

11

See id.

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mediation are subject to the veil of confidentiality. Plaintiff points to no Tenth Circuit cases
recognizing an exception to its rule of confidentiality in analogous circumstances, and the Court
finds none. For this Court to now recognize such an exception would, in essence, be to appoint
itself to re-draft the Tenth Circuit local rules. For obvious reasons, the Court declines to do so.
The cases cited by Plaintiff are inapposite. For instance, Plaintiff cites cases that suggest
Rule 408 of the Federal Rules of Evidence does not prohibit disclosure in these circumstances,12
and that extrinsic evidence may be used to construe the Rule 68 Offer of Judgment.13 But each of
these address an issue the Court would have to confront if Plaintiff overcame the confidentiality
hurdle. Plaintiff has not done so, and that is reason enough to conclude statements made during
the appellate mediation conference should not be disclosed.
Even though Defendants prevail on their motion, they should not read this ruling as
approving of what Plaintiff describes as their current course of action. Defendants apparently
believe, contrary to the clear language of their Offer of Judgment,14 that Plaintiff’s $60,000
judgment should be reduced by some portion of Plaintiff’s attorneys’ fees. The Court notes that,
should Defendants wish to make that argument in a forthcoming motion regarding attorneys’ fees,
they should not expect to find a receptive ear in this Court.

12
See Bradbury v. Phillips Petroleum Co., 815 F.2d 1356 (10th Cir. 1987). The Court expresses no view on
the merits of these arguments at this time.
13

See Steiner v. Lewmar, Inc., 816 F.3d 26 (2d Cir. 2017) (“Courts have generally held that such ambiguities
[in Rule 68 Offers] will be construed against the offeror.”); First Nat. Bank of Olathe v. Clark, 226 Kan. 619, 602
P.2d 1299, 1304 (1979) (“If a written contract is actually ambiguous concerning a specific matter in the agreement,
facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent
and purpose of the contract in that regard, but not for the purpose of varying and nullifying its clear and positive
provisions.”). Again, the Court does not address the merits of this argument.
14
The Offer was “in the total amount of Sixty Thousand Dollars ($60,000.00) plus reasonable attorneys’ fees
and costs allowed by law, if any, which have been incurred to date in this cause and no other relief.”

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IT IS THEREFORE ORDERED that Defendants’ Motion for Reconsideration (Doc.
580) is GRANTED.
IT IS SO ORDERED.
Dated this 8th day of February, 2022.

ERIC F. MELGREN
CHIEF UNITED STATES DISTRICT JUDGE

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