Opinion
Civil Action No. 02-4135-JAR.
December 16, 2004
MEMORANDUM AND ORDER DENYING MOTION TO RECONSIDER
This matter is before the Court on plaintiff Farmland Industries, Inc.'s Motion to Reconsider Order Denying Summary Judgment (Doc. 43). Plaintiff filed a Motion for Summary Judgment (Doc. 29) and defendants filed a Cross-Motion for Summary Judgment (Doc. 33). This Court denied both motions by Order dated August 27, 2004 (Doc. 43). Plaintiff asks the Court to reconsider its Order denying plaintiff's Motion for Summary Judgment. For the reasons set forth below, plaintiff's motion is denied.
Plaintiff seeks reconsideration of the Court's Order denying summary judgment pursuant to Federal Rules of Civil Procedure 59(e). A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the moving party can establish: (1) an intervening change in the controlling law; (2) the availability of new evidence that could not have been obtained previously through the exercise of due diligence; or (3) the need to correct clear error or prevent manifest injustice. A losing party should not use a motion for reconsideration as a vehicle to rehash arguments previously considered and rejected. Nor does a party's failure to present its strongest case in the first instance entitle it to a second chance in the form of a motion for reconsideration. The decision to grant or deny a motion for reconsideration is committed to a court's discretion.
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Voelkel v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994).
Sac Fox Nation of Missouri v. LaFaver, 993 F. Supp. 1374, 1375-76 (D. Kan. 1998).
Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996); cert. denied 520 U.S. 1181 (1997).
When supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered or, if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. Merely claiming that one did not previously know the importance of the evidence is not sufficient to support a motion to reconsider.
See Webber v. Mefford, 43 F.3d 1340, 1345 (10th Cir. 1994).
See id.
Plaintiff bases its request for reconsideration on newly discovered evidence. Plaintiff attaches to its motion the following exhibits: a letter from Mountain Energy Corporation to Terra Nitrogen Corporation; a Manchester Gas Storage Facility Injection/Withdrawal Schedule; Rod Donovan's September 24, 2003 deposition testimony; Michael Eichenberg's September 24, 2003 deposition testimony; an invoice from Mountain Energy Corporation to Farmland; an invoice from Mountain Energy Corporation to Tenaska Marketing Ventures; and Eichenberg's affidavit dated September 8, 2004. With the exception of Eichenberg's affidavit, all of the evidence proffered is not newly discovered evidence, but rather was previously available to plaintiff. Indeed, plaintiff relied upon the deposition testimony of Donovan and Eichenberg in support of its motion for summary judgment. The documentary exhibits were likewise previously available. Even plaintiff admits that this evidence was generated during "pretrial discovery." That plaintiff did not realize the importance of these documents until after the Court issued its summary judgment ruling does not transform otherwise previously available evidence into newly discovered evidence.
Plaintiff also proffers Eichenberg's affidavit. The affidavit is new in the sense that plaintiff did not seek the affidavit until after the Court's summary judgment ruling. However, plaintiff's belated attainment of the affidavit is not newly discovered evidence, because plaintiff could have obtained the affidavit prior to the Court's decision. Plaintiff has not even attempted to show that it previously made a diligent yet unsuccessful effort to discover the affidavit. Nor could plaintiff make such a showing; Eichenberg was deposed prior to the summary judgment motion. In fact, the affidavit references and reiterates portions of Eichenberg's deposition testimony. Thus, Eichenberg's testimony was clearly available to plaintiff at the time it submitted its summary judgment motion; that plaintiff did not previously seek the affidavit is not a proper basis for the Court to reconsider its ruling and plaintiff's motion must be denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff's Motion to Reconsider (Doc. 43) is denied.
IT IS SO ORDERED.