Brown v. Eppler et al
Filing
232
OPINION AND ORDER by Judge Claire V Eagan ; denying 212 Motion for New Trial (Re: 208 Opinion and Order,, Ruling on Motion for Permanent Injunction, Ruling on Motion for Summary Judgment, Ruling on Motion for Hearing,,,,,,,,,, 212 MOTION for New Trial , 209 Judgment, Entering Judgment,,,, ) (RGG, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DAVID L. BROWN,
Plaintiff,
v.
J.D. EPPLER, RAY WILLARD, JANE DOE,
JANET DOE, METROPOLITAN TULSA
TRANSIT AUTHORITY, PAUL T.
BOUDREAUX, and RICHARDSON
RICHARDSON BOUDREAUX,
Defendants.
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Case No. 09-CV-0466-CVE-TLW
OPINION AND ORDER
Now before the Court is Plaintiff’s Motion for New Trial Pursuant to Rule 59 of Federal
Rules of Civil Procedure with Request for a Court Hearing (Dkt. # 212). Plaintiff David L. Brown
argues that he was entitled to a jury trial on the issue of damages, and he asks the Court to reconsider
it opinion and order (Dkt. # 208) granting his request for a permanent injunction and awarding him
nominal damages.1 Defendant Metropolitan Tulsa Transit Authority (MTTA) responds that it raised
the issue of damages in its motion for summary judgment and plaintiff failed to respond to this
argument, and plaintiff should not be permitted to raise new arguments in a motion to reconsider.
Dkt. # 221, at 3. Plaintiff has not filed a reply and his time to file a reply has expired.
I.
On July 17, 2009, plaintiff filed this case alleging that his constitutional rights were violated
by MTTA’s decision to permanently ban him from riding the bus. Dkt. # 1. He alleged that his
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Plaintiff was represented by counsel at various times, including while the case was on
appeal, but he is currently proceeding pro se and the Court will take this fact into account
in reviewing his motion to reconsider. Dkt. # 185 (plaintiff’s pro se appearance).
rights to procedural due process and equal protection of the law were violated by defendants’
actions. Id. at 2. Plaintiff requested a preliminary injunction that would allow him to ride the bus,
and the Court set the matter for a hearing. After a hearing, the Court denied plaintiff’s motion for
a preliminary injunction. Dkt. # 25. Defendants filed a motion for summary judgment (Dkt. # 39),
and plaintiff sought leave to file an amended complaint (Dkt. # 42). The Court denied defendants’
motion for summary judgment and allowed plaintiff to file an amended complaint adding additional
parties. Dkt. # 47. The Court entered a scheduling order (Dkt. # 50) and the parties engaged in
numerous discovery disputes.2 Defendants filed a second motion for summary judgment (Dkt. # 94).
The Court granted the motion and, as to plaintiff’s procedural due process claim, found that he did
not have a constitutionally protected liberty or property interest. Dkt. # 136. Plaintiff appealed the
Court’s decision, and the Tenth Circuit Court of Appeals reversed this Court’s ruling on plaintiff’s
procedural due process claim.
The Court reopened the case and directed the parties to file a joint proposed scheduling
order. Dkt. # 175. After the appeal, MTTA was the sole remaining defendant. The parties were
unable to cooperate3 and the Court set the matter for a status hearing. Plaintiff filed a second motion
for preliminary injunction (Dkt. # 194), and the motion was converted into a request for a permanent
injunction. Dkt. # 196. The Court set a deadline for the parties to file motions for summary
judgment, and MTTA filed a motion for summary judgment on plaintiff’s procedural due process
2
The record shows significant hostility between the parties, and there were requests for
sanctions by plaintiff and defendants.
3
For example, counsel for MTTA refused to communicate with plaintiff after receiving
information that plaintiff threatened to shoot an MTTA employee. Dkt. # 185, at 4. Plaintiff
denies the allegation, and he claims that the allegation is based on “defense counsel’s intense
animosity and venom for and against Plaintiff . . . .” Id. at 1.
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claim. MTTA argued, inter alia, that plaintiff could not recover compensatory damages even if he
established that a constitutional violation occurred. Dkt. # 200, at 23-25. After the Court granted
plaintiff’s opposed request for an extension of time to respond to the motion for summary judgment,
plaintiff filed a response requesting an evidentiary hearing on the merits of his procedural due
process claim, but he did not respond to MTTA’s argument concerning his right to recover
compensatory damages. Dkt. # 205. In fact, plaintiff’s response was largely non-responsive to all
of the arguments raised by MTTA, but he did attach affidavits to his response and the affidavits were
considered by the Court when it ruled on the pending motions. On April 24, 2014, the Court entered
an opinion and order (Dkt. # 208) and permanent injunction (Dkt. # 209) granting the relief sought
in plaintiff’s motion for permanent injunction. The Court also awarded plaintiff nominal damages,
but the Court found no evidence in the summary judgment record that would support an award of
compensatory damages to plaintiff. Dkt. # 208, at 12.
II.
Under Rule 59(e), a party may ask a district court to reconsider a summary judgment ruling
when the district court has “misapprehended the facts, a party’s position, or the controlling law.”
Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). “Grounds
warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Reconsideration
is “not available to allow a party to reargue an issue previously addressed by the court when the
reargument merely advances new arguments or supporting facts which were available for
presentation at the time of the original argument.” FDIC v. United Pac. Ins. Co., 152 F.3d 1266,
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1272 (10th Cir. 1998) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir. 1996)).
“A Rule 59(e) motion to reconsider is designed to permit relief in extraordinary circumstances and
not to offer a second bite at the proverbial apple.” Syntroleum Corp. v. Fletcher Int’l, Ltd., 2009
WL 761322 (N.D. Okla. Mar. 19, 2009).
III.
Plaintiff claims that the Court violated his rights under the Seventh Amendment to the United
States Constitution, because the Court awarded plaintiff only nominal damages without setting a jury
trial on the issue of damages. Dkt. # 212, at 1. He claims that the Court violated the Tenth Circuit’s
mandate by determining a remedy without holding a jury trial.4 Id. at 2. He also claims that the
factual findings in the Court’s opinion and order (Dkt. # 208) are “clearly erroneous and without
basis.” Id. at 3. MTTA responds that it raised the issue of damages in its motion for summary
judgment and plaintiff failed to respond to this argument, and plaintiff should not be permitted to
use a motion to reconsider to assert new arguments that plaintiff could have raised in his response
to MTTA’s motion for summary judgment. Dkt. # 221, at 2.
Plaintiff admits that he failed to respond to defendant’s argument that there was no evidence
showing that plaintiff was entitled to compensatory damages, but he claims that he “did not waive
any right to a claim for compensatory damages by failing to reply to defendants [sic] meritless
contentions in said defendants [sic] attorneys meritless brief.” Dkt. # 212, at 4. Even though
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The Tenth Circuit remanded the case “for further proceedings not inconsistent with the
opinion,” but it did not direct the Court to hold a jury trial on any issue. Dkt. # 174, at 18.
At the status hearing, the parties agreed to file motions for summary judgment on plaintiff’s
procedural due process claim. Dkt. # 196. Plaintiff does not explain how the Court
allegedly violated the Tenth Circuit’s mandate, and the Court finds that plaintiff’s argument
concerning the mandate rule is meritless.
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plaintiff did not respond to MTTA’s argument, the Court did not find that plaintiff conceded the
issue of damages and the Court considered the evidence in the summary judgment record to
determine if plaintiff could be entitled to damages. Dkt. # 208, at 12. The only evidence that could
have supported an award of compensatory damages was plaintiff’s deposition testimony, but the
Court stated that it would be “speculating if it awarded compensatory damages to plaintiff based
only on his somewhat vague deposition testimony.” Id. Plaintiff has attached no new evidence to
his motion to reconsider and there is no evidence in the record that would support an award of
compensatory damages to plaintiff. The Court takes into account that plaintiff is proceeding pro se
but, even so, this does not excuse plaintiff’s failure to respond to MTTA’s arguments or to properly
support his response to MTTA’s motion for summary judgment with evidentiary materials. See Kay
v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (“[The] liberal treatment [of pro se litigants] is not
without limits, and ‘this court has repeatedly insisted that pro se parties follow the same rule of
procedure that govern other litigants’”). The Court finds no basis to reconsider its earlier decision
to award plaintiff nominal damages only, and plaintiff’s motion to reconsider should be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for New Trial Pursuant to Rule
59 of Federal Rules of Civil Procedure with Request for a Court Hearing (Dkt. # 212) is denied.
DATED this 13th day of June, 2014.
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