Minix v. Stone et al
MEMORANDUM OPINION & ORDER: IT IS ORDERED that the Movant's Motion to Alter or Amend D.E. 8 be, and the same hereby is, DENIED. Signed by Judge Joseph M. Hood on 1/17/19.(JLM)cc: COR,Dft by U.S. Mail. Modified text on 1/17/2019 (JLM).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
M. STEPHEN MINIX, SR.,
CHARITY STONE, and
JAMES D. LYONS,
Action No. 5:18-cv-212-JMH
MEMORANDUM OPINION & ORDER
* * *
This matter is before the Court upon Movant’s Motion to Alter
or Amend [DE 8] the Court’s Memorandum Opinion and Order dated
July 27, 2018.
Respondents filed Objections to this motion [DE 9]
and Movant replied [DE 10].
The motion is ripe for a decision.
For the reasons stated herein, Movant’s motion is DENIED.
Federal Rule of Civil Procedure 59(e) permits a party to file
a motion to alter or amend a judgment within 28 days after the
“A court may grant a Rule 59(e) motion to alter or
amend if there is: (1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or (4) a
need to prevent manifest injustice.”
428 F.3d 605, 620 (6th Cir. 2005).
Intera Corp. v. Henderson,
“[A] Rule 59(e) motion cannot
be used to ‘relitigate old matters, or to raise arguments . . .
that could have been raised prior to the entry of judgment,’ or
‘to re-argue a case.’”
J.B.F. through Stivers v. Ky. Dept’ of
Educ., 690 F. App’x 906, 906-7 (6th Cir. 2017) (quoting Exxon
Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5 (2008); Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th
Minix does not identify any clear errors of law in the Court’s
He further fails to identify new evidence or a
change in the law which would require the Court to alter or amend
Finally, Minix has not shown that a manifest
Movant Minix claims Charity Stone has not
presented expert testimony to support her claim for emotional
distress in the state court proceeding.
As the Court previously
held, “this Court has no jurisdiction to make any rulings related
to the personal injury case currently working its way through the
Kentucky appeals courts.”
[DE 8, p. 2].
Minix next argues he has a right to a jury trial in the
It appears this is a renewed request to withdraw
argument in the Memorandum Opinion and Order dated July 27, 2018.
Specifically, the Court weighed the six factors to determine
whether discretionary withdrawal was warranted, and found it was
not warranted, primarily because “the bankruptcy petition and
adversary proceeding involve the administration of the estate and
the dischargeability of the judgment against Minix,” and the
bankruptcy court has been handling those matters since September
To the extent Minix now attempts to revive this request to
withdraw the reference by making a jury demand, the claim is dead
Litigants are required to make a demand for a jury
trial by written demand “no later than 14 days after the last
“Pleadings” are defined in Rule 7(a), and the latest
pleading the bankruptcy adversary proceeding was filed on May 14,
See Stone v. Minix (In re Minix), AP No. 18-05003-tnw
(Bankr. E.D.Ky. 2018).
Therefore, Minix should have made his
jury demand within 14 days of May 14, 2018, not on August 16, 2018.
Furthermore, the Seventh Amendment confers no right to a jury trial
on a debtor who voluntarily files for bankruptcy and is a defendant
in a dischargeability adversary proceeding.
Longo v. McLaren (In
re McLaren), 3 F.3d 958 (6th Cir. 1993).
Minix finally argues that the state court case is on appeal,
therefore the Bankruptcy adversary proceeding is premature.
appears to be an argument asking the district court to intervene
Memorandum Opinion and Order dated July 27, 2018, there is no
withdraw the reference.
The Court analyzed in detail in its prior
opinion the factors for discretionary withdrawal of the reference,
and the bankruptcy case at issue did not satisfy those factors.
Nothing has changed in the law or facts since the Court’s prior
Memorandum Opinion and Order.
Accordingly, for the reasons stated herein and the Court being
otherwise sufficiently advised, IT IS ORDERED that the Movant’s
Motion to Alter or Amend [DE 8] be, and the same hereby is, DENIED.
This the 17th day of January, 2019.
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