United States District Court, W.D. Oklahoma
REBECCA L. AKE, Plaintiff,
CENTRAL UNITED LIFE INSURANCE COMPANY, Defendant.
L. RUSSELL, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion to Reconsider (1) the
District Court of Oklahoma County's August 31, 2017,
order (“State Court Order, ” Doc. 34-2)
dismissing Plaintiff's claims against then-defendant
Carol Gatlin, and (2) the Court's December 29, 2017 order
(Doc. 27) striking Plaintiff's Amended Complaint (Doc.
21) and quashing her summons of Carol Gatlin. See
Doc. 29. The Court hereby denies the Motion for failure to
present grounds for reconsideration.
parties have extensively litigated Carol Gatlin's
presence in this case over the last year. Plaintiff, an
Oklahoma resident, filed a petition against Defendant Central
United Life Insurance Company (“Central United”),
a foreign corporation, and Gatlin, an Oklahoma resident and
former employee of Central United,  in the State Court on
November 2, 2016. See Ake v. Central United Life Ins. Co.
and Carol Gatlin, No. 17-CV- 539, Doc. 1-1. Following
expiration of Oklahoma's 180-day window for service,
Defendant Central United removed the case to the Western
District of Oklahoma on May 9, 2017, on the basis of
diversity jurisdiction. Id., Doc. 1; see 12
Okla. Stat. § 2004(I). The Court then granted
Plaintiff's motion to remand because an unserved
defendant's citizenship impacts the diversity inquiry.
Id., Doc. 7. However, the State Court dismissed this
unserved defendant Gatlin on August 21, 2017, and vacated its
prior decision allowing service of Gatlin by publication.
See Ake v. Central United Life Ins. Co., No.
17-CV-937, Doc. 34-2. On August 31, 2017, her dismissal provided
the basis for Defendant's second removal to this Court.
See Doc. 1. Since then, Plaintiff has repeatedly
ignored prior orders acknowledging Gatlin's dismissal and
has tried to maintain her as a party. See id., Docs.
7-14, 21-23, and 27. On January 4, 2018, Plaintiff filed a
second amended complaint against Defendant Central United,
Doc. 28. She now seeks reconsideration of prior orders
dismissing Gatlin in order to serve Gatlin outside the
requisite 180-day window.
Rule of Civil Procedure 54(b) allows for reconsideration of a
prior order- including the State Court Order that “in
essence is federalized when the action is removed to federal
court, ” Resolution Tr. Corp. v. Northpark Joint
Venture, 958 F.2d 1313, 1316 (5th Cir. 1992);
see 28 U.S.C. § 1450-upon “(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). “[A] motion for reconsideration . .
. [is an] inappropriate vehicle to reargue an issue
previously addressed by the court when the motion merely
advances new arguments, or supporting facts which were
available at the time of the original motion.”
has not presented an intervening change in controlling law,
and her reference to “clear error and . . . manifest
injustice” is a conclusory argument without merit. Doc.
36, at 2. After all, neither party has briefed whether
respondeat superior applies to inculpate Central
United for Gatlin's actions. If it does apply,
Gatlin's status as a defendant is less relevant because
Plaintiff's allegations against her would bear directly
on Central United's liability. If the doctrine does not
apply, Plaintiff has made no effort to demonstrate how this
would prejudice her claim sufficient to constitute a
“manifest injustice.” Servants of
Paraclete, 204 F.3d at 1012. Further, Plaintiff has not
shown “clear error” in the Court's prior
finding that Defendant filed a timely and proper notice of
removal on August 31, 2017. See Doc. 20, at 2; Doc.
29, at 2-4.
Plaintiff's remaining outlet for reconsideration is
“new evidence previously unavailable.”
Id. This alleged new evidence is a transcript of a
January 3, 2018, call between Plaintiff's counsel and
Gatlin in which Gatlin states that she has resided in Mexico
for the last three years. See Docs. 29-1, 29-2.
Assuming Gatlin actually was residing consistently outside
Oklahoma during the 180-day service window, this service
deadline “shall not apply” and the State Court
Order's justification is undermined. 12 Okla. Stat.
§ 2004(I); see State Court Order, Doc. 34-2
(citing § 2004(I)). Gatlin's move to Mexico would
also justify Plaintiffs many failed in-person attempts at
service. See Docs. 36-1, 36-2. However, Defendant
rightly notes Plaintiffs inexplicable failure to show
“why this phone call could not have transpired in the
180 days following the filing of Plaintiffs petition in state
court.” Doc. 35, at 3. The Motion suggests that counsel
merely called a publicly available number and Gatlin
answered, identifying herself and sharing that she has
resided outside Oklahoma for the last three years.
See Doc. 29, at 2. Plaintiff also has not explained
why she did not attempt service by publication within the
proper 180-day window. See 12 Okla. Stat. §
2004(C)(3). Therefore, Gatlin's presence abroad does not
constitute evidence “previously unavailable, ”
and reconsideration is inappropriate. Servants of
Paraclete, 204 F.3d at 1012. The Motion, Doc. 29, is
 Both parties assume that at the time
of this case's filing-the relevant date for diversity
jurisdiction purposes-Gatlin was an Oklahoma resident
allegedly living in Mexico. See Grupo Dataflux v. Atlas
Glob. Grp., L.P., 541 U.S. 567, 570-71 (2004). Without
evidence concerning Gatlin's “intent to
remain” in Mexico at time-of-filing, the Court assumes
she is an Oklahoma resident. Mississippi Band of Choctaw
Indians v. Holyfield, 490 U.S. 30, 48 (1989).
 The remaining docket numbers below
refer to Plaintiff's instant case, 17-CV-937.
 Technically, the Federal Rules do not
recognize a motion for reconsideration. Computerized
Thermal Imaging, Inc. v. Bloomberg, L. P ., 312 F.3d
1292, 1296 n. 3 (10th Cir.2002). However, Rule 54(b) provides
for “revising” prior orders pre-judgment, and
courts have applied Rule 59(e)'s standard for altering or
amending a judgment. See Official Comm. of Unsecured
Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LLP, 322 F.3d 147, 167 (2d Cir. 2003); Garcia v.
U.S. Air Force, 533 F.3d 1170, 1180 (10th Cir. 2008);
Grimes v. Cirrus Indus., Inc., No. ...