Woodward et al v. DCCCA Inc. et al
MEMORANDUM AND ORDER granting 120 Motion to Dismiss for Lack of Jurisdiction; denying 125 Motion for Leave to File a Motion for Reconsideration Out of Time. Signed by District Judge J. Thomas Marten on 8/23/2011. Mailed to pro se party James W. Woodward and Destiny Brown by regular mail (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES W. WOODWARD AND
Case No. 09‐1410‐JTM
DCCCA INC., ET AL,
MEMORANDUM AND ORDER
This matters is before the court on two motions. First, defendants Tri‐County CASA,
Inc., DCCCA Inc., Marrylee Armstrong, Kelly Elliott, Janett Jacobs, Leslie Jensby, Tanya
Lynn, David McElhiney, Carmel Poor, Phyllis K. Webster, and Gail Kristine Wilscam have
moved to dismiss the claims of Brown and Woodward on multiple grounds, including
Younger abstention, failure to state a claim, statute of limitations, 28 U.S.C. § 1915(e)(2)(B),
and (as to defendants Tri‐County CASA) statutory immunity pursuant to 42 U.S.C. § 14501
and K.S.A. 38‐2206(b). (Dkt. 120). Brown and Woodward have filed no response to the
Motion to Dismiss.
The plaintiffs have, however, filed a Motion for Leave to File a Motion for
Reconsideration Out of Time. (Dkt. 125). The plaintiffs seek both reconsideration of the
court’s prior Order dismissing defendants Maier, Wiebe, and Lewis, and alternatively, a
stay of the proceedings.
The plaintiffs’ motion is hereby denied. Plaintiffs have failed to show just cause for
their delay in timely filing with the Clerk of the Court a response to the Motion to Dismiss
of defendants Wiebe, Maier, and Lewis. Further, such leave should not be granted where
the effect would not alter the result.
Motions to reconsider under Fed.R.Civ.Pr. 59(e) may be granted to correct manifest
errors, or in light of newly discovered evidence; such a motion is directed not at initial
consideration but reconsideration, and is appropriate only if the court has obviously
misapprehended a partyʹs position, the facts, or applicable law, has mistakenly decided
issues not presented for determination, or the moving party produces new evidence which
it could not have obtained through the exercise of due diligence. Anderson v. United Auto
Workers, 738 F.Supp. 441, 442 (D. Kan. 1989). A motion to reconsider is not ʺa second
chance for the losing party to make its strongest case or to dress up arguments that
previously failed.ʺ Voelkel v. GMC, 846 F.Supp. 1482 (D.Kan.), affʹd, 43 F.3d 1484 (10th Cir.
The resolution of the motion is committed to the sound discretion of the court.
Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988). In their latest motion,
the plaintiffs simply reiterate arguments as to abstention and limitations which have been
previously rejected by the court. Accordingly, the plaintiffs’ Motion for Leave is hereby
In addition, the court hereby grants the Motion to Dismiss of the Tri‐County CASA
defendants, both on the merits and as an unopposed motion pursuant to D.Kan. Rule 7.4.
In their Motion for Leave, the plaintiffs repeat their previously rejected abstention and
limitations argument, and ask that the court should “reconsider the dismissals for the
[Wiebe] defendants and any future dismissals by any of the remaining defendants for
cause.” (Dkt. 125, at 4). Plaintiffs make no mention of the Motion to Dismiss of the Tri‐
County CASA defendants.
D.Kan. Rule 7.1 requires that “a party opposing a motion must file a responsive brief
or memorandum.” The generic, pre‐emptive request that the court deny “any future
dismissals of the remaining defendants,” without directly referencing the specific motion
of a given defendant, or engaging the arguments advanced by that defendant, is clearly not
a responsive pleading in any meaningful sense. In addition, it may be noted that the
Motion for Leave, while repeating arguments as to abstention and the statute to limitations,
contains no reference to the defendants’ arguments as to the failure to state a claim or
statutory immunity. Accordingly, the Motion to Dismiss of the Tri‐County CASA
defendants is accordingly properly granted pursuant to D.Kan. Rule 7.4.
In addition, that motion is also granted on the merits. The court has previously
determined that the issues relating to the custody of the plaintiff’s daughter was subject to
both abstention and dismissal under the relevant statute of limitations (Dkt. 118), and the
court finds no basis to reach a different conclusion as to these defendants, or for delaying
entry of judgment in their favor.
IT IS ACCORDINGLY ORDERED this 23rd day of August, 2011, that the defendants’
Motion to Dismiss (Dkt. 120) is hereby granted; plaintiffs’ Motion for Leave (Dkt. 125) is
S/J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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