United States District Court, N.D. Oklahoma
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs Elbert and Kay Kirby's Motion to
Reconsider (Doc. 62). For the reasons discussed below,
Plaintiffs' Motion is DENIED.
filed this action pro se on April 25, 2017.
Defendants filed Motions to Dismiss on June 13, 2019 (Docs.
44 and 45), to which Plaintiffs never responded. The Court
granted the Motions to Dismiss on February 26, 2019. (Doc.
60.) On March 7, 2019, Plaintiffs filed a Motion for
Reconsideration, alleging that they never responded to
Defendants' Motions to Dismiss because Defendants'
attorneys never served Plaintiffs with those motions, and
requesting the opportunity to respond now. (Doc. 62.)
Motion for Reconsideration
state that their Motion for Reconsideration is made under
Federal Rule of Civil Procedure (“Rule”) 59(e).
(Doc. 62; Doc. 66, pg. 3; Doc. 67, pg. 4.) Accordingly, the
Court finds that it should be construed as a Motion to Alter
or Amend Judgment. Fed.R.Civ.P. 59(e). A Motion to Alter or
Amend Judgment is warranted when there is (1) an intervening
change in the controlling law, (2) new evidence previously
unavailable, or (3) the need to correct clear error or
prevent manifest injustice. See Servants of the Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (internal
citations and quotations omitted). A motion pursuant to Rule
59(e) is designed to permit relief in “extraordinary
circumstances” only. See Hill v. Mem'l. Drive
United Methodist Church, 17-cv-227-CVE-JFJ, 2018 U.S.
Dist. LEXIS 69232, *4 (N.D. Okla. Apr. 25, 2018).
case, Plaintiffs seeks relief under the third ground, the
need to correct clear error or prevent manifest injustice.
“Manifest injustice” may reach serious misconduct
of counsel when those improper actions have affected the
outcome of the case. Stapleton v. St. Francis Hosp.,
Inc., No. 10-cv-0806-CVE-FHM, 2011 U.S. Dist. LEXIS
133946, *9 (N.D. Okla. Nov. 21, 2011); 11 Charles Alan Wright
et. al., Federal Practice and Procedure §
2810.1 (3d ed. 2018). The Court assumes, arguendo,
that Defendants' counsel failing to serve Plaintiffs with
their Motions to Dismiss would be serious misconduct which
would affect the outcome of those motions. Accordingly, the
Court must determine whether Defendants' counsel failed
to serve Plaintiffs.
movant, Plaintiffs bear the burden of proof to show manifest
injustice based on Defendants' attorneys' serious
misconduct. See Thymes v. Verizon Wireless, Inc.,
No. 16-66 KG/WPL, 2017 U.S. Dist. LEXIS 3846, *5-6 (D. NM.
Jan. 9, 2017). Plaintiffs have failed to carry this burden.
Though Plaintiffs contend that they were never served with
copies of Defendants' Motions to Dismiss, they have
provided no evidence or factual allegations to support these
contentions. Defendants, however, have presented evidence
that they served their Motions to Dismiss on Plaintiffs. Lead
counsel for Bryan Allen Plank and Plank Law Firm
(“Plank Defendants”) Ryan A. Ray, has submitted
an affidavit indicating that, at his direction, a member of
his staff served the Motion to Dismiss on Plaintiffs at their
address of record. (Doc. 63-1, pg. 3.) Mr. Ray also attached
a copy of his office's “Postage Audit Sheet,
” indicating that his office mailed something related
to this case on June 13, the same date that his firm filed
Plank Defendants' Motion to Dismiss online. (Doc. 63-1,
pg. 8; Doc. 44, pg. 31.) Similarly, Defendants Tulsa
Community College and TCC Board of Regents (“TCC
Defendants”) have presented the transmittal email from
their counsel, Brad Brown, to the email address
“email@example.com, ” conveying the
file-stamped copy of TCC Defendants' Motion to Dismiss.
(Doc. 65-1.) This is the email address from which Plaintiffs
communicated with Defendants' counsel. (Doc. 63, pg.
9-60; Doc. 66, pg. 3.) The email program lists as an
attachment “[DOC 45] Motion to Dismiss Second Amended
Complaint by TCC Defendants.” (Doc. 65-1.)
Additionally, in their Replies, Plaintiffs have presented no
evidence and alleged no facts to rebut Defendants'
evidence indicating that Plaintiffs were served with copies
of these motions. Considering this evidence, Plaintiffs have
not demonstrated that Defendants' attorneys failed to
Plaintiffs' arguments in their Replies can be easily
dismissed. First, Plaintiffs argue that TCC Defendants'
email is fraudulent because “the copy submitted
doesn't not [sic] have a file stamp leading the Plaintiff
to question the construction and the disputable nature of
said documents.” (Doc. 67, pg. 3.) However, while TCC
Defendants' motion does not bear the physical stamp that
a document receives when it is filed in person, it does bear
the electronic stamp that a document receives when it is
filed online using the Federal Judiciary's Case
Management/Electronic Case Files system, as this motion was.
(Doc. 45, pg. 14.) Second, Plaintiffs argue that
“[j]ust because the Defendant plead something does not
mean it is proven.” (Doc. 67, pg. 4.) However, it is
Plaintiffs, as the movants, who bear the burden of proof.
Defendants must only show that Plaintiffs have failed to
carry their burden, which Defendants here have done.
Accordingly, Plaintiffs have failed to demonstrate
extraordinary circumstances sufficient to permit relief, and
their motion must be denied.