Young v. Heineman et al

Filing 176

MEMORANDUM AND ORDER that plaintiff's Motion for Reconsideration 173 is denied. Ordered by Senior Judge Joseph F. Bataillon. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LESLIE RAE YOUNG,
Plaintiff,

4:10CV3147

vs.
MEMORANDUM AND ORDER
PETE RICKETTS, Governor of the State of
Nebraska, in his official capacity; DOUG
PETERSON, Attorney General of Nebraska,
in his official capacity; JOHN A. GALE,
Secretary of State & Chairperson of the
Nebraska Real Estate Commission, in their
official capacities; GREG LEMON, Director
of the Nebraska Real Estate Commission, in
their official capacities; AL AVERY, in their
official capacities as members of the
Nebraska Real Estate Commission; DREW
STANGE, in their official capacities as
members of the Nebraska Real Estate
Commission; VINCENT LEISEY, in their
official capacities as members of the
Nebraska Real Estate Commission;
ROBERT DOVER, in their official capacities
as members of the Nebraska Real Estate
Commission; KATHRYN ROUCH, in their
official capacities as members of the
Nebraska Real Estate Commission; DAVID
PTAK, in their official capacities as members
of the Nebraska Real Estate Commission;
Defendants.

This matter is before the Court on the plaintiff’s motion to reconsider, Filing No. 173.
Plaintiff contends the Court should reconsider its ruling, Filing No. 171, wherein the Court
found the plaintiff violated the Nebraska Real Estate License Act, Neb. Rev. Stat. § 81-885
(2010) et seq. (“the Act”). Plaintiff concedes that she violated the Act, but states the Court
failed to address her constitutional First and Fourteenth Amendment claims.
A motion for a new trial or amendment of judgment under Fed R. Civ. P. 59 serves
the limited function of allowing a court to correct manifest errors of law or fact or allowing a

party to present newly discovered evidence. United States v. Metropolitan St. Louis Sewer
Dist., 440 F.3d 930, 934-35 (8th Cir. 2006). Such motions cannot be used to introduce new
evidence, tender new legal theories, or raise arguments which could have been offered or
raised prior to entry of judgment. Id. Rule 59(e) “provides a means ‘to support
reconsideration [by the court] of matters properly encompassed in a decision on the
merits.’” Leonard v. Dorsey and Whitney, LLP, 553 F.3d 609, 620 (8th Cir. 2009). Under
rule 59(e), the court may reconsider issues previously before it, and generally may examine
the correctness of the judgment itself. Id. Under Rule 60, relief from judgment is available
under the catch-all provision of the rule, Fed. R. Civ. P. 60(b)(6), “‘only where exceptional
circumstances have denied the moving party a full and fair opportunity to litigate his claim
and have prevented the moving party from receiving adequate redress.’”

Murphy v.

Missouri Dept. of Corrections, 506 F.3d 1111, 1117 (8th Cir. 2007) (quoting Harley v.
Zoesch, 413 F.3d 866, 871 (8th Cir. 2005)).
The Court clearly addressed these claims in its memorandum and order, finding that
this is arguably not free speech, but is rather conduct regulation.

See Filing No. 171,

Memorandum and Order, p. 7, “B. Constitutional Issues”; pp. 6-16. The Court will not
reconsider these findings.
THEREFORE, IT IS ORDERED THAT plaintiff’s motion for reconsideration, Filing
No. 173, is denied.

Dated this 8th day of April, 2015
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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