United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs Motion for a New Trial (Dkt. #
19). The Court entered an opinion and order (Dkt. #16)
dismissing plaintiffs claims, but plaintiff was permitted to
file an amended complaint re-alleging his federal employment
discrimination claims. Plaintiff failed to do so and missed
his deadline by two weeks, and the Court dismissed this case
without prejudice due to plaintiffs failure to file an
amended complaint. Plaintiff has filed a motion asking the
Court to reconsider its opinion and order dismissing his
claims, and he claims that his failure to file an amended
complaint is excusable. Dkt. #19.
December 22, 2018, plaintiff filed this case in Tulsa County
District Court alleging claims under the Americans with
Disabilities Act, 42 U.S.C. § 12010 et seq.
(ADA) and the Age Discrimination in Employment Act, 29 U.S.C.
§ 621 etseq. (ADEA). Plaintiff also alleged a
claim for wrongful termination in violation of an Oklahoma
public policy. Defendant Mead Johnson Nutrition Co. removed
the case to this Court and filed a motion to dismiss arguing
that plaintiff failed to allege that he exhausted his
administrative remedies before filing suit. Dkt. # 10, at 2.
Defendant also argued that a claim for wrongful termination
in violation of an Oklahoma public policy had been
statutorily abolished. Id. Plaintiff filed a
response and argued that he did exhaust his administrative
remedies, but he failed to respond to defendant's
argument concerning the viability of his state law claim.
Dkt. #14. The Court dismissed plaintiffs federal employment
discrimination claims, because he failed to allege that he
had exhausted his administrative remedies. Dkt. # 16, at 5.
The Court did not find that it lacked jurisdiction over the
case due to plaintiffs alleged failure to exhaust his
administrative remedies. Plaintiff argued that he had
actually exhausted his administrative remedies, and the Court
directed plaintiff to file an amended complaint no later than
January 15, 2019 re-alleging his federal claims. IcL at 7. As
to plaintiffs state law claim, the Court considered whether a
claim of wrongful discharge in violation of an Oklahoma
public policy was still a viable claim, even though plaintiff
had not responded to defendant's argument. Id.
at 6. The Court determined that this claim had been
statutorily abolished and dismissed the claim without
allowing plaintiff to re-assert the claim in an amended
complaint. Id. at 6-7. Plaintiff did not file an
amended complaint and, on January 29, 2019, defendant filed a
motion to dismiss the case due to plaintiffs failure to file
an amended complaint. Dkt. #18. The Court granted
defendant's motion and dismissed the case without
prejudice to refiling. Dkt. # 19.
asks the Court to reconsider its decision to dismiss his
case. Dkt. #19. Plaintiffs motion to reconsider was filed
within 28 days of the order of dismissal, and the Court will
treat plaintiffs 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
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 IntT, Ltd., 2009 WL
761322 (N.D. Okla. Mar. 19, 2009).
argues that the requirement to exhaust administrative
remedies is no longer jurisdictional, and he claims that the
Court erred when it found that it lacked jurisdiction over
his federal employment discrimination claims due to his
failure to plead exhaustion of administrative remedies. Dkt.
# 19, at 9. Plaintiff cites Lincoln v. BNSF Railway
Co., 900 F.3d 1166 (10th Cir. 2018), for the proposition
that the failure to exhaust administrative remedies as to a
discrete incident of discrimination may not be a
jurisdictional prerequisite to suit under the ADA. Dkt. # 16,
at 4. The Court cited this case in its opinion and order
(Dkt. # 16, at 4), and was well aware of the holding of
Lincoln. Instead, Lincoln clearly states
that an employer is permitted to raise an affirmative defense
that a plaintiff has not alleged exhaustion of administrative
remedies, even if this would not deprive the Court of
jurisdiction over the case. Lincoln, 900 F.3d at
1185. That is precisely what happened in this case. Defendant
filed a motion to dismiss arguing that "[p]laintiff s
[p]etition is deficient in that he fails to make any
allegation that he complied with the administrative
conditions precedent to each of his claims." Dkt. # 10,
at 2. Defendant did not make a jurisdictional argument and
the Court did not treat the failure to exhaust administrative
remedies as a jurisdictional defect.
the Court found that plaintiff had failed to plead a
necessary fact and allowed him to file an amended complaint
curing this pleading deficiency.
case was dismissed when he failed to file an amended
complaint in compliance with a deadline set by the Court.
Dkt. #18. Plaintiffs counsel claims that he missed the
Court's deadline to file an amended complaint, because
his law firm went from eleven to four attorneys in the time
period from April to November 2018. Plaintiffs counsel also
states that his firm moved into a new office at the beginning
of January 2019. Neither of these claims tends to show that
plaintiffs counsel's failure to file an amended complaint
was excusable. The fact that several attorneys left the firm
months before the Court entered its opinion and order does
not tend to show that plaintiffs counsel could not have
drafted an amended complaint in January 2019. Plaintiffs
counsel does not deny that he received notice of the
Court's opinion and order, and it would not have taken a
substantial amount of time to prepare an amended complaint.
Plaintiffs counsel could have requested an extension of time
to file the amended complaint if he knew that moving offices
would make it difficult to comply with the deadline set by
the Court. In any event, the Court did not immediately
dismiss the case after plaintiff failed to meet the deadline
to file an amended complaint, and plaintiff had two
additional weeks to file an amended complaint after the
deadline expired on January 15, 2019. The Court does not find
that plaintiffs failure to file an amended complaint is
excusable and the case was properly dismissed.
IS THEREFORE ORDERED that Plaintiffs Motion for a