Minix v. Stone et al

Filing 13

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
In re:
M. STEPHEN MINIX, SR.,
Movant,
v.

CHARITY STONE, and
JAMES D. LYONS,
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

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
entry thereof.

“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
Cir. 1998)).
Minix does not identify any clear errors of law in the Court’s
prior ruling.

He further fails to identify new evidence or a

change in the law which would require the Court to alter or amend
its Judgment.

Finally, Minix has not shown that a manifest

injustice occurred.

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
district court.
the

referral.

It appears this is a renewed request to withdraw
The

undersigned

exhaustively

addressed

this

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
2 

the dischargeability of the judgment against Minix,” and the
bankruptcy court has been handling those matters since September
2017.

To the extent Minix now attempts to revive this request to

withdraw the reference by making a jury demand, the claim is dead
on arrival.

Litigants are required to make a demand for a jury

trial by written demand “no later than 14 days after the last
pleading

directed

38(b)(1).

to

the

issue

is

served.”

Fed.

R.

Civ.

P.

“Pleadings” are defined in Rule 7(a), and the latest

pleading the bankruptcy adversary proceeding was filed on May 14,
2018.

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.

This

appears to be an argument asking the district court to intervene
in

the

bankruptcy

proceeding.

As

discussed

in

the

Court’s

Memorandum Opinion and Order dated July 27, 2018, there is no
constitutional

violation

withdraw the reference.

which

would

require

this

Court

to

The Court analyzed in detail in its prior

opinion the factors for discretionary withdrawal of the reference,
3 

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.

4