Fesenmeyer v. City of Kansas City Missouri et al
Filing
52
ORDER denying 46 Plaintiff's Motion For Reconsideration. Signed on 7/15/16 by Chief District Judge Greg Kays. (Attachments: # 1 16 Point Aerial Font) (Strodtman, Tracy) Modified on 7/15/2016 - mailed to Jeff Zimmerman. (Strodtman, Tracy).
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
PAULA FESENMEYER,
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)NO. 15-00850-CV-W-DGK
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PLAINTIFF,
V.
CITY OF KANSAS CITY,
MISSOURI, ET AL.,
DEFENDANTS.
ORDER DENYING PLAINTIFF’S MOTION FOR
RECONSIDERATION
PRO SE PLAINTIFF PAULA FESENMEYER BROUGHT
THIS CLAIM AGAINST DEFENDANTS PARS ENGINEERING,
INC., TALIAFERRO & BROWNE (“T&B”), AND THE CITY OF
KANSAS CITY, MISSOURI, FOR ALLEGED VIOLATIONS OF
THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. § 12101
ET SEQ., VIOLATIONS OF THE MISSOURI HUMAN RIGHTS
ACT, MO. REV. STAT. § 213.010 ET SEQ., AND COMMON LAW
FRAUD.
ON JUNE 6, 2016, THE COURT DISMISSED THIS
ACTION FOR FAILURE TO STATE A CLAIM.
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NOW BEFORE THE COURT IS PLAINTIFF’S MOTION
FOR RECONSIDERATION OF THE JUNE 6, 2016, DISMISSAL
ORDER (DOC. 46). FOR THE REASONS SET FORTH BELOW,
THE MOTION IS DENIED.
THE FEDERAL RULES OF CIVIL PROCEDURE DO NOT
INCLUDE A “MOTION TO RECONSIDER.” KEYS V. WYETH,
INC., NO. C08-1023, 2009 WL 1010064, AT *1 (N.D. IOWA
APRIL
14,
2009).
SUCH
MOTIONS
ARE
USUALLY
CONSTRUED AS EITHER A RULE 59(E) MOTION TO ALTER
OR AMEND THE JUDGMENT, OR A RULE 60(B) MOTION FOR
RELIEF
FROM
A
“FINAL
JUDGMENT,
ORDER,
OR
PROCEEDING.” ID.
RULE 60(B) APPLIES TO FINAL JUDGMENTS OR
ORDERS AND MAY BE USED TO RECONSIDER A FINAL
ORDER ON CERTAIN ENUMERATED GROUNDS SUCH AS
EXCUSABLE
NEGLECT,
FRAUD,
NEWLY
DISCOVERED
EVIDENCE, OR “ANY OTHER REASON THAT JUSTIFIES
RELIEF.”
FED. R. CIV. P. 60(B); SEE 11 CHARLES ALAN
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WRIGHT, ARTHUR R. MILLER, AND MARY KAY KANE,
FEDERAL PRACTICE AND PROCEDURE § 2852 (2ND ED.
1995).
A
PARTY
MOVING
FOR
RECONSIDERATION
PURSUANT TO ANY PORTION OF RULE 60(B) MUST
“ESTABLISH ‘EXCEPTIONAL CIRCUMSTANCES’ TO OBTAIN
THE ‘EXTRAORDINARY RELIEF’ THE RULE PROVIDES.”
DEWIT V. FIRSTAR CORP., 904 F. SUPP. 1476, 1496 (N.D.
IOWA 1995) (QUOTING UNITED STATES V. ONE PARCEL OF
PROP. LOCATED AT TRACTS 10 AND 11 OF LAKEVIEW
HEIGHTS, CANYON LAKE, COMAL CTY., TEXAS, 51 F.3D 117,
119 (8TH CIR. 1995)).
A DISTRICT COURT HAS WIDE
DISCRETION IN DECIDING WHETHER TO GRANT A RULE
60(B) MOTION, BUT THE EIGHTH CIRCUIT HAS CAUTIONED
THAT “EXCEPTIONAL CIRCUMSTANCES ARE NOT PRESENT
EVERY TIME A PARTY IS SUBJECT TO POTENTIALLY
UNFAVORABLE CONSEQUENCES AS A RESULT OF AN
ADVERSE JUDGMENT PROPERLY ARRIVED AT.” ATKINSON
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V. PRUDENTIAL PROP. CO., INC., 43 F.3D 367, 373 (8TH CIR.
1994).
PLAINTIFF HAS NOT DEMONSTRATED THAT SUCH
“EXCEPTIONAL CIRCUMSTANCES” EXIST HERE.
AS FOR
THE UNDERLYING DISCRIMINATION CLAIMS, PLAINTIFF’S
MOTION RESTATES FACTS PREVIOUSLY CONSIDERED BY
THE COURT IN DISMISSING THE CASE. PLAINTIFF’S NEW
ADDITION IS THE CHARGE THAT JAMES W. TIPPIN,
ATTORNEY OF RECORD FOR T&B, BREACHED HIS DUTY TO
HER AS A FORMER CLIENT. 1 SEE MO. SUP. CT. R. 4-1.9.
WHILE AN UNDISCLOSED CONFLICT OF INTEREST MAY BE
GROUNDS FOR A MALPRACTICE SUIT, IT ALONE DOES NOT
AMOUNT
1
TO
AN
“EXCEPTIONAL
CIRCUMSTANCE”
PLAINTIFF ASSERTS THAT JAMES TIPPIN & ASSOCIATES
WAS ASSIGNED TO REPRESENT THE 720 TENANTS OF
TWIN OAKS APARTMENTS, INCLUDING PLAINTIFF, IN A 2005
LAWSUIT (DOC. 46 ¶ 20).
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REQUIRING RELIEF FROM A FINAL JUDGMENT. SEE IN RE
COMPACT DISC MINIMUM ADVERTISED PRICE ANTITRUST
LITIG., 456 F.SUPP.2D 131, 140-41 (D. ME. 2006) (FINDING
THAT
ALLEGATIONS
OF
ATTORNEYS’
CONFLICT
OF
INTEREST DID NOT RISE TO THE LEVEL OF “FRAUD ON THE
COURT”).
ACCORDINGLY,
PLAINTIFF’S
MOTION
TO
RECONSIDER (DOC. 46) IS DENIED.
IT IS SO ORDERED.
_/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
DATED: July 15, 2016
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