Nelson v. Acosta-Corrales et al

Filing 121

ORDER denying 116 Motion for Reconsideration. Signed by Magistrate Judge James P. O'Hara on 1/2/2014. (ah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
AMANDA NELSON, et al.,
Plaintiffs,
v.
JOSE T. ACOSTA-CORRALES, and
DEANGELO BROTHERS, INC.,
Defendants.

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Case No. 12-1419-JAR

ORDER
This action arises from a motor-vehicle accident that resulted in the death of
Christopher Scott Hayes. Discovery has closed and a final pretrial conference is scheduled
for January 13, 2014. Before the court is plaintiffs’ motion for reconsideration of the court’s
December 5, 2013 order1 denying plaintiffs’ request for leave to file a third amended
complaint (ECF doc. 116).

Because plaintiffs have demonstrated no basis for

reconsideration, the motion is denied.
Plaintiffs seek reconsideration under D. Kan. Rule 7.3(b)(3), which permits the filing
of a motion to reconsider based on “the need to correct clear error or prevent manifest
injustice.” Whether to grant or deny a motion to reconsider is committed to the court’s
discretion.2

A motion for reconsideration is appropriate if the court “has obviously

1

ECF doc. 114.

2

GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1386 (10th Cir.
1997); In re Motor Fuel Temperature Sales Practices Litig., 707 F. Supp. 2d 1145, 1166 (D.
Kan. 2010).
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misapprehended a party’s position on the facts or the law.”3 However, a motion to reconsider
“is not a second opportunity for the losing party to make its strongest case, to rehash
arguments or to dress up arguments that previously failed.”4 “Such motions are not
appropriate if [the] movant only wants the Court to revisit issues already addressed or to hear
new arguments or supporting facts that could have been presented originally.”5
Plaintiffs assert that the court’s December 5, 2013 order appears to preclude them
from seeking statutory damages under K.S.A. 66-176. According to plaintiffs, the court
reached this conclusion based on plaintiffs’ “clear error” in characterizing their proposed
addition of statutory damages as a “new claim.” Plaintiffs state that, in actuality, they have
always “pursued a claim for civil penalties and attorneys’ fees . . . based on the allegation
that the Defendants violated K.S.A. 66-1,129.”6
K.S.A. 66-1,129 is Kansas’s “catch all” statute prohibiting the operation of motor
vehicles by public motor carriers of property7 (among others) “except within the provisions
of the rules and regulations adopted by the [state corporation] commission.” K.S.A. 66-176

3

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)).
4

In re Motor Fuel, 707 F. Supp. 2d at 1166.

5

Id.

6

ECF doc. 116 at 2.

7

A “public motor carrier of property” is defined as “any person who undertakes for
hire to transport by commercial motor vehicle, from place to place, the property other than
household goods of others who may choose to employ or contract with the motor carrier.”
K.S.A. 66-1,108(m).
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is the penalty provision, which provides that “[a]ny . . . common carrier which violates any
of the provisions of law for the regulation of . . . common carriers shall forfeit, for every
offense, to the person . . . aggrieved thereby, the actual damages sustained by the party
aggrieved, together with the costs of suit and reasonable attorney fees.”
Plaintiffs are correct that in plaintiff Amanda Nelson’s complaint,8 amended
complaint,9 and second amended complaint10 it was alleged that defendant Jose T. AcostaCorrales was negligent per se for violating K.S.A. 66-1,129.11 However, plaintiffs have
never before alleged, in any version of their complaints, that defendant DeAngelo Brothers,
Inc. violated K.S.A. 66-1,129 or any other Kansas statute or regulation for common carriers
that might give rise to recovery under K.S.A. 66-176. Rather, plaintiffs made the general
allegation that “DeAngelo Brothers, Inc. was independently negligent in the manner that it
employed, retained, trained, monitored, and supervised its employee, Defendant AcostaCorrales.”12

Such an allegation cannot reasonably be read to assert statutory

violations—amounting to negligence per se—against DeAngelo Brothers.13 It was not until

8

ECF doc. 1.

9

ECF doc. 5.

10

ECF doc. 20.

11

See, e.g., id. at ¶ 18(b).

12

See, e.g., id. at ¶ 21.

13

See Hayes Sight & Sound, Inc. v. ONEOK, Inc., 136 P.3d 428, 457 (Kan. 2006)
(distinguishing a case “predicated on negligence” from one “on violations of the provision
of law” discussed in K.S.A. 66-176).
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plaintiffs’ proposed third amended complaint that plaintiffs set out allegations of regulatory
violations by DeAngelo Brothers14 and a corresponding section seeking civil penalties under
K.S.A. 66-176 from DeAngelo Brothers.15
Thus, the court concludes that its December 5, 2013 order properly reflected the state
of the record, i.e., that plaintiffs had inexplicably delayed “asserting a statutory claim based
on regulatory violations” against DeAngelo Brothers.16 The court did not misapprehend
plaintiffs’ position in seeking leave to file a third amended complaint—regardless of how
plaintiffs framed their K.S.A. 66-176 discussion. The court rejects plaintiffs’ newly asserted
(and erroneous) argument that they previously alleged that DeAngelo Brothers violated
K.S.A. 66-1,129 and that their proposed amended complaint simply sought to specify the
statutory provision for recovery.17
Plaintiffs’ motion for reconsideration of the court’s order denying them leave to file
a third amended complaint is denied.
IT IS SO ORDERED.

14

ECF doc. 107-1 at ¶ 28(a)–(f).

15

Id. at ¶¶ 49–52.

16

ECF doc. 114 at 5.

17

As noted above, the current version of plaintiffs’ complaint does allege that AcostaCorrales violated KSA 66-1,129. ECF doc. 20 at ¶ 18(b). It also seeks “civil penalties” and
“attorneys’ fees.” Id. at 5. Thus, plaintiffs potentially may argue that they should be entitled
to seek K.S.A. 66-176 penalties against Acosta-Corrales. That question is not before the
court, however, as plaintiffs’ proposed amended complaint did not address the applicability
of K.S.A. 66-176 to Acosta-Corrales.
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Dated January 2, 2013, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

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