Asebedo v. Kansas State University

Filing 58

MEMORANDUM AND ORDER denying 56 Motion for Reconsideration re 54 Order on Motion to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 9/9/14. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

EDWIN ASEBEDO,
Plaintiff,
vs.
KANSAS STATE UNIVERSITY,
et al.,
Defendant.

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Case No. 12-1373-EFM-KGG

MEMORANDUM AND ORDER
DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION
Now before the Court is Plaintiff’s “Motion for Reconsideration” (Doc. 56),
requesting that the Court revisit the issues addressed in the Court’s Order (Doc. 54)
denying Plaintiff’s “Motion for Leave to Amend” (Doc. 48). For the reasons set
forth below, the motion is DENIED.
The background of this case was summarized by Magistrate Judge
Humphreys in her February 8, 2013, Order granting Plaintiff’s first Motion to
Amend and repeated in the underlying Order now being reconsidered. (Docs. 16,
54.) That summary is incorporated herein by reference, as well as are the
additional facts contained in the underlying Order being reconsidered (Doc. 54).
“A motion to reconsider is not a second chance for the losing party to make

its strongest case or to dress up arguments that previously failed.” Voelkel v. Gen.
Motors Corp., 846 F. Supp. 1482, 1483 (D.Kan. 1994), aff’d, 43 F.3d 1484 (Table)
(10th Cir. 1994). A motion for reconsideration 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. D. Kan. Rule 7.3.
Plaintiff argues the Court should reverse its prior decision “in order to
correct clear error and prevent manifest injustice.” (Doc. 56, at 1.) The prior
Order held, in relevant part that
Plaintiff’s motion makes no effort to establish diligence
or the requisite good cause to allow him to modify the
Scheduling Order to amend out of time. There is no
discussion as to why the amendment could not have been
made in a timely manner. Plaintiff’s motion references
the EEOC right to sue letter he alleges to have received
on June 13, 2014. The Court surmises, however, that the
agency charge in question had already been filed at the
time of the [May 29, 2014] scheduling conference. Even
if it had not yet been filed, Plaintiff does not explain why
the facts contained in the underlying charge of
discrimination – and its potential for necessitating an
amendment to his Complaint – would have been
unknown to him at the time of the scheduling conference
that occurred a mere two weeks earlier. Plaintiff’s
Motion (Doc. 48) is, therefore, DENIED.
(Doc. 54, at 4.)
Plaintiff now argues that
at the time of the filing of the Scheduling Order, [he] had
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not yet received his right to sue and the EEOC was still
conducting or concluding their investigation. Pursuant to
29 C.F.R. §1601.28 and EEOC procedures, a grieving
party is precluded from bringing a civil action until such
time as the investigation is concluded and a right to sue is
issued. 29 C.F.R. §1601.28. Due to the timing of the
receipt of the right to sue, Ed could not have requested an
amendment prior to the filing of the Scheduling Order.
(Doc. 56, at 2-3.)
The Court is fully aware of the mechanisms and requirements for filing an
EEOC charge of discrimination, receiving a right to sue letter, and filing a federal
court cause of action. The Court is aware, as it was at the time the underlying
Order was entered, that a party may not file a federal court employment
discrimination cause of action until a right to sue letter is received from the
charging agency.
This does not change the fact that even though Plaintiff did not receive this
right to sue letter until June 13, 2014, he and his counsel were aware of its
existence and the underlying facts contained in that charge of discrimination at the
time of the May 29, 2014, scheduling conference. In neither the prior motion nor
the motion to reconsider does Plaintiff explain why these facts (and the resultant
potential for an amendment to his Complaint) were not raised with the Court at the
time of the May 29, 2014, scheduling conference that occurred a mere two weeks
before he received his right to sue letter. To the contrary, at the scheduling
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conference, Plaintiff’s counsel attested that no additional amendments to the
pleadings were needed. The May 30, 2014, Scheduling Order, which was entered
two weeks before Plaintiff received the right to sue letter at issue, specifically and
unequivocally stated that “[t]he parties stipulate no motion for leave to join
additional parties or to otherwise amend the pleadings will be filed.” (Doc. 43, at
7.)
While it is true that Plaintiff “could not have requested an amendment prior
to the filing of the Scheduling Order,” Plaintiff could – and should – have informed
the Court that the amendment would be necessary upon receipt of the forthcoming
right to sue letter. Plaintiff failed to do so and instead stipulated that no additional
motions to amend the pleadings would be filed. Doing so is the antithesis of the
diligence required to modify the Scheduling Order.
As such, Plaintiff has failed to establish the requisite diligence for seeking to
modify the scheduling order. Grieg v. Botros, No. 08-1181-EFM-KGG, 2010 WL
3270102, at *3 (D.Kan. Aug. 12, 2010) (citing Leviton Mfg. Co., Inc. v. Nicor,
Inc., 245 F.R.D. 524, 528 (D.N.M.2007) (internal citations omitted)). Plaintiff’s
motion (Doc. 56) is, therefore, DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 9th day of September, 2014.
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S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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