Cooper v. Home Depot, The et al

Filing 75

MEMORANDUM AND ORDER denying 74 Motion for Reconsideration filed by Willie Cooper. Signed by District Judge Julie A. Robinson on 8/18/2011. (pp)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIE COOPER,

)
)
Plaintiff,
)
)
vs.
)
)
THE HOME DEPOT, et. al.,
)
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Defendants.
)
____________________________________)

Case No. 11-1006

MEMORANDUM AND ORDER
Plaintiff Willie Cooper, proceeding pro se, brought this action against defendants The
Home Depot, Home Depot U.S.A., Inc., Richard Gaskill, John Hutzenhbuhler, Daniel Moore and
William Polzin, alleging numerous claims stemming from his termination from his former
employer, Home Depot U.S.A., Inc. (“Home Depot”). On June 17, 2011, the Court granted
defendants’ motions to dismiss plaintiff’s First Amended Complaint on multiple grounds (Doc.
68). On July 25, 2011, the Court denied plaintiff’s Motion to Set Aside Judgment and to Amend
Complaint (Doc. 73), after construing the motion as one for relief from judgment under Fed. R.
Civ. P. 60(b), as it was filed outside the fourteen day period from the date of filing prescribed by
Rule 59.
This matter is before the Court on plaintiff’s Motion for Reconsideration (Doc. 74) of its
previous orders, citing Rules 59(e) and 60(a) and (b). In effect, plaintiff is requesting
reconsideration of the Court’s order denying his motion for reconsideration. Nevertheless,
because plaintiff filed the instant motion to reconsider within fourteen days of the denial of his
previous motion to set aside, out of an abundance of caution the Court will construe his motion

as a Rule 59(e) motion to alter or amend.1
A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the
moving party can establish: (1) an intervening change in the controlling law; (2) the availability
of new evidence that could not have been obtained previously through the exercise of due
diligence; or (3) the need to correct clear error or prevent manifest injustice.2 “Thus, a motion
for reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law.”3 Such a motion does not permit a losing party to rehash
arguments previously addressed or to present new legal theories or facts that could have been
raised earlier.4 The law in this circuit is clear that a Rule 59(e) motion “cannot be used to
expand a judgment to encompass new issues which could have been raised prior to issuance of
the judgment.”5
Even after affording plaintiff’s motion all permissible leniency, he fails to proffer any
grounds or argument justifying relief from either the order of dismissal or the order denying his
request to set aside that judgment. At best, plaintiff’s motion merely rehashes arguments
previously considered and rejected by the Court. As such, the Court declines to revisit settled
issues. Plaintiff has not presented any instance of an intervening change in the law, new

1

Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995); D. Kan. Rule 7.3(a) (allowing party to seek
reconsideration of a dispositive order under Rules 59(e) or 60).
2

Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995); Aerotech Res. Inc. v. Dodson
Aviation, Inc., 191 F. Supp. 2d 1209, 1213 (D. Kan. 2002).
3

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

4

Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996), cert. denied, 520 U.S.
1181 (1997).
5

Steele v. Young, 11 F.3d 1518, 1520 n.1 (10th Cir. 1993).

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evidence or manifest injustice warranting reconsideration or relief from the Court’s prior rulings.
Accordingly, plaintiff’s motion is denied.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff’s Motion for
Reconsideration (Doc. 74) is DENIED.
IT IS SO ORDERED.
Dated: August 18, 2011
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

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