Coons v. Allstate Indemnity Company

Filing 56

OPINION AND ORDER by Judge Claire V Eagan ; denying 53 Motion for New Trial (Re: 52 Judgment,,,, Dismissing/Terminating Case, ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

TRACY COONS,
Plaintiff,
v.
ALLSTATE INDEMNITY COMPANY,
Defendant.

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Case No. 12-CV-0597-CVE-TLW

OPINION AND ORDER
Now before the Court is plaintiff’s Motion for New Trail [sic] in Nonjury Actions (Dkt. #
53). On May 30, 2013, the Court granted defendant Allstate Indemnity Company’s (Allstate)
motion to dismiss plaintiff’s claims due to his refusal to participate in discovery, and entered a
judgment of dismissal in favor of defendant. Plaintiff asks the to vacate the judgment of dismissal
and to enter a new scheduling order allowing the parties additional time to conduct discovery.
On October 9, 2012, plaintiff filed this case in Tulsa County District Court, Oklahoma,
alleging that Allstate breached an insurance contract and acted in bad faith by intentionally
misrepresenting to plaintiff the extent to which his roof was damaged after a hail storm. Allstate
removed the case to this court on the basis of diversity jurisdiction. Dkt. # 2. Plaintiff was initially
represented by counsel, Gene Dennison and James Linger. The Court entered a scheduling order,
inter alia, setting a discovery cutoff of April 30, 2013, and a nonjury trial on September 9, 2013.
A settlement conference before an adjunct settlement judge was set for April 11, 2013. Plaintiff
filed a pro se motion (Dkt. # 24) to strike the settlement conference on the ground that he would
refuse to participate in any type of mediation, but the motion was stricken by the magistrate judge
because it was not filed by plaintiff’s attorney. Plaintiff’s counsel filed a motion to withdraw (Dkt.

# 31) from their representation of plaintiff, because plaintiff refused to communicate with his
attorneys or participate in any type of discovery. The Court granted the motion to withdraw and
directed plaintiff to obtain new counsel or enter a pro se appearance no later than May 1, 2013.
On April 12, 2013, Allstate filed a motion to dismiss and for attorney fees due to plaintiff’s
failure to participate in discovery. Dkt. ## 32, 33. Plaintiff entered a pro se appearance (Dkt. # 40)
and he filed a response (Dkt. # 41) to the motion to dismiss. In his pro se appearance and response,
he claimed that he was still represented by Dennison. Plaintiff stated that he “appears before the
court to have this matter understood and to be finished with,” and he cited Fed. R. Civ. P. 41. Dkt.
# 41, at 1-2. Plaintiff’s response did not contain any statement suggesting that he would agree to
cooperate in the discovery process, and he claimed that “he has given all paperwork that he has
related to this matter” to his former attorney. Id. at 1. On May 30, 2013, the Court granted
Allstate’s motion to dismiss and found that plaintiff’s claims should be dismissed with prejudice to
refiling. Dkt. # 51. The Court applied the factors stated in Ehrenhaus v. Reynolds, 965 F.2d 916
(10th Cir. 1992), and found that no other sanction would remedy the prejudice suffered by Allstate.
The Court entered judgment of dismissal on the same day. Plaintiff now asks the Court to vacate
its opinion and order (Dkt. # 51) and judgment (Dkt. # 52).
Plaintiff’s motion was filed within 28 days of the entry of judgment, and the Court will treat
plaintiff’s motion as a motion to alter or amend judgment under Fed. R. Civ. P. 59(e). Under Rule
59(e), a party may ask a district court to reconsider a final ruling or judgment 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

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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, 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).
Plaintiff has filed a motion for new trial, but he does not identify any error with the Court’s
decision to dismiss his claims. Instead, plaintiff cites Fed. R. Civ. P. 37(f) and “§ 4834”1 and makes
the following statements:
1.

Tracy L. Coons, Plaintiff, has not received a copy of the Discovery Plan
required by Rule 37(f) FRCVP, from his attorney and the court.

2.

Tracy L. Coons, Plaintiff, has not personally spoken with the United States
District Judge, therefore, it is understandable as to the opinion the Judge
reached in the Opinion and Order, Dated the 30th of May, 2013.

3.

Tracy L. Coons, Plaintiff, respectfully submits, that inaction can always be
accounted for, whereas action taken will continually be debated.

Dkt. # 53, at 2. Plaintiff has filed an affidavit (Dkt. # 54) signed by Dennison, and Dennison
apparently agrees to resume his representation of plaintiff if the motion for new trial is granted.
Dennison claims that he spoke to plaintiff and he believes that plaintiff understands “the importance

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Section 4834 is not contained in Title 28 of the United States Code and the Court is unable
to locate the source of plaintiff’s citation.
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of an orderly progression of his case.” Dkt. # 54, at 1. Plaintiff has also filed another pro se
appearance in which he asks that Dennison be identified as his attorney of record. Dkt. # 55.
The Court has reviewed plaintiff’s post-judgment filings and finds that plaintiff has not
asserted a valid ground for reconsideration of the judgment of dismissal. Even under a liberal
construction of plaintiff’s pro se filings, it is unclear what arguments plaintiff could be asserting in
support of his request for reconsideration. Plaintiff could be arguing that he did not personally
participate in the preparation of a discovery plan under Fed. R. Civ. P. 26, but his attorney and
defense counsel prepared a joint status report (Dkt. # 15) containing all of the information required
under Rule 26(f). The lack of plaintiff’s direct participation in the drafting of the joint status report
is not a basis to vacate the judgment of dismissal. Plaintiff has not identified a change in the law
or offered new evidence in support of his claims, and he has not shown that the judgment of
dismissal was the result of clear error. In fact, he acknowledges that the Court’s decision was
“understandable.” Dkt. # 53, at 2. The dismissal of plaintiff’s claims was caused by his own failure
to participate in the prosecution of his claims, and the Court finds no basis to reconsider its opinion
and order (Dkt. # 51) or judgment of dismissal (Dkt. # 52).
IT IS THEREFORE ORDERED that plaintiff’s Motion for New Trail [sic] in Nonjury
Actions (Dkt. # 53) is denied.
DATED this 17th day of June, 2013.

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