United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Rick Langkamp's Motion for
New Trial and to Amend/Alter Judgment or Relief from Judgment
of the Court's Order Entered on March 3,  (Dkt. #
36). Mr. Langkamp asks the Court to alter its opinion and
order (Dkt. # 31), in which the Court, inter alia,
terminated Mr. Langkamp as a party. Mr. Langkamp asks the
Court to allow him to bring in this suit new discrimination
claims for which he has just received a right to sue letter
from the Equal Employment Opportunity Commission (EEOC).
Defendant Mayes Emergency Services Trust Authority (MESTA)
objects, arguing that the claims Mr. Langkamp wishes to
assert are barred by res judicata. Dkt. # 38, at 2.
and Darla Langkamp originally filed this suit against MESTA
and John Does 1-15, alleged board members and employees,
agents, and representatives of MESTA. Dkt. # 2. On March 3,
2017, the Court granted in part and denied in part
MESTA's motion to dismiss (Dkt. # 13). The Court granted
the motion as to Ms. Langkamp's negligence claim and Mr.
Langkamp's retaliation claim under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(Title VII), and denied the motion as to Ms. Langkamp's
retaliation claims under Title VII and 42 U.S.C. § 1983.
Dkt. # 31, at 18. In the same opinion and order, the Court
granted Ms. Langkamp's motion to amend the complaint to
assert new claims against the Board of County Commissioners
of Mayes County that had become actionable when Ms. Langkamp
received a right to sue letter from the EEOC on those claims
after the original complaint was filed. Id. at
17-18. The Court also denied Mr. Langkamp's motion to
stay until the related proceedings he had pending before the
EEOC were completed. Id. at 18. On March 16, 2017,
Mr. Langkamp received a right to sue letter on his remaining
claims. Dkt. # 36-6. Mr. Langkamp now asks the Court to amend
its March 3, 2017 opinion and order and allow him to assert
the Title VII and Americans with Disabilities Act, 42 U.S.C.
§ 12101 et seq. (ADA), claims covered by the
March 16, 2017 right to sue letter from the EEOC.
Langkamp asks the Court to amend or alter its March 3, 2017
opinion and order pursuant to Federal Rules of Civil
Procedure 59(e) and 60(b). Dkt. # 36, at 1. Rules 59 and 60
apply to final orders. See e.g., Trujillo v. Bd.
of Educ. of Albuquerque Pub. Sch., 212 F. App'x 760,
765 (10th Cir. 2007); Raytheon Constructors Inc. v. Asarco
Inc., 368 F.3d 1214, 1217 (10th Cir. 2003). As to Mr.
Langkamp, the Court did not enter final judgment and
determine that there was no just reason for delay under Rule
54(b). Thus, Mr. Langkamp's motion should be treated as a
motion for reconsideration filed prior to final judgment.
See Trujillo, 212 F. App'x at 765. A district
court has “general discretionary authority to review
and revise interlocutory rulings prior to entry of final
judgment.” Wagoner v. Wagoner, 938 F.2d 1120,
1122 n.1 (10th Cir. 1991). “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).
Court denied Mr. Langkamp's motion to stay because at the
time it was unknown how long it would take for his pending
EEOC proceedings to conclude, and an indefinite stay of this
case would have caused undue delay and prejudiced defendants.
Mr. Langkamp's March 16, 2017 right to sue letter from
the EEOC is new evidence that was previously unavailable.
This new evidence changes the facts that undergirded the
Court's prior decision because Mr. Langkamp is no longer
asking for an indefinite stay. His EEOC proceedings are
complete, and Mr. Langkamp asks the Court to allow the
Langkamps to file a second amended complaint in light of his
newly actionable claims.
decision to grant leave to amend is within the discretion of
the district court and should be “freely given when
justice so requires.” Bradley v. Val-Majias,
379 F.3d 892, 900-01 (10th Cir. 2004). Leave to amend may be
denied for reasons such as undue delay, bad faith or dilatory
motive on the part of the movant, undue prejudice to the
opposing party, or futility of the amendment. Foman v.
Davis, 370 U.S. 178 (1962). Mr. Langkamp's request
comes approximately a week after Ms. Langkamp filed an
amended complaint (Dkt. # 32) pursuant to the Court's
March 3, 2017 opinion and order. The Court sees no reason why
allowing Mr. Langkamp to assert his new claims in this suit
would prejudice defendants when such a short period of time
has passed since the Court's opinion and order and Ms.
Langkamp's amended complaint. Moreover, given that only
three days passed between Mr. Langkamp receiving his right to
sue letter and his motion, Mr. Langkamp appears to have been
diligent in this matter.
argues that Mr. Langkamp's new claims are barred by res
judicata, but arguments that go to the merits of the new
claims are premature. At this stage, the Court asks whether
the amendment would be clearly futile, and the Court does not
find Mr. Langkamp's new claims to be obviously without
merit. The Court dismissed Mr. Langkamp's Title VII claim
that became actionable in his September 19, 2016 right to sue
letter because he failed to even attempt to assert the claim
in the state court proceedings pending at the time the claim
became actionable. Dkt. # 31, at 15-16. Mr. Langkamp's
latest right to sue letter was received on March 16, 2017,
months after the termination of the latest state court case.
Thus, Mr. Langkamp's new claims are not obviously barred
by res judicata. However, this decision does not prejudice
defendants from moving to dismiss Mr. Langkamp's claims
on the merits, including res judicata, once a second amended
complaint has been filed.
the Court's March 3, 2017 opinion and order, Ms. Langkamp
filed a bizarre amended complaint (Dkt. # 32) that included a
claim the Court had dismissed and listed Mr. Langkamp as a
plaintiff in the case caption even though he had been
terminated as a party. In her amended complaint, Ms. Langkamp
stated that she was “mindful” of the Court's
opinion and order, but included the claim “out of an
abundance of caution” to preserve the issue. Dkt. # 32,
at 13 n.2. The Court has already advised Ms. Langkamp that
her understanding of preserving issues for appeal is
misguided, and she must comply with the Court's orders.
Dkt. ## 34, 35. The Court reiterates those warnings here, and
advises the Langkamps to carefully comply with this and all
other orders of this Court.
Court will exercise its discretion to alter its March 3, 2017
opinion and order (Dkt. # 31) based on new evidence - Mr.
Langkamp's March 16, 2017 right to sue letter from the
EEOC -to allow the Langkamps to file a second amended
complaint adding Mr. Langkamp's Title VII and ADA claims
covered by the March 16, 2017 right to sue letter. However,
the Langkamps may not alter or amend their amended complaint
apart from adding the claims discussed above. Specifically,
Ms. Langkamp shall not include any claims already dismissed
or add any additional claims not contained in her amended
complaint (Dkt. # 32). Moreover, in the second amended
complaint, the case caption shall include Mr. Langkamp as a
THEREFORE ORDERED that Plaintiff Rick Langkamp's Motion
for New Trial and to Amend/Alter Judgment or Relief from
Judgment of the Court's Order Entered on March 3, 
(Dkt. # 36) is granted, and Rick and Darla Langkamp may file
a second amended complaint, consistent with the rulings
herein, no later than March 30, 2017.
 This and all other unpublished
opinions are not precedential, but they may be cited for
their persuasive value. See Fed. R. App. 32.1; ...