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Wenzel v. Storm

United States District Court, E.D. Missouri, Eastern Division

February 12, 2019

ERIC WENZEL, ANNIE ALLEY, and THELMA WENZEL, Plaintiffs,
v.
CARL STORM, Defendant.

          MEMORANDUM

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on the motion of defendant Carl Storm for reconsideration of the Court's denial of summary judgment on Counts 3, 4, and 5. The parties have consented to the exercise of plenary authority by a Magistrate Judge under 28 U.S.C. § 636(c).

         For the reasons discussed below, the Court grants the motion and dismisses the action.

         I. BACKGROUND

         Plaintiffs Eric Wenzel, Annie Alley, and Thelma Wenzel filed their complaint, seeking relief in five counts:

Count 1: against defendant police officer Carl Storm under 42 U.S.C. § 1983 for use of unconstitutionally excessive force that resulted in the death of plaintiffs' decedent, Gary Wenzel, on March 5, 2014;
Count 2: against the defendant City of Bourbon, Missouri, under 42 U.S.C. § 1983, as the employer of defendant Storm with liability based upon the doctrine of respondeat superior;
Count 3: against both defendants for wrongful death under the law of Missouri;
Count 4: against both defendants for assault under the law of Missouri; and
Count 5: against both defendants for battery under the law of Missouri.

         On March 14, 2016, the Court dismissed Count 2 for failure to state a claim, holding that a municipality is only liable under Section 1983 when an express or implied policy or custom of the municipality caused the alleged injury.

         On April 13, 2017, upon both defendants' motions for summary judgment, the Court dismissed Counts 3, 4, and 5 against the City of Bourbon, but denied summary judgment to defendant Storm on the state law claims in Counts 1, 3, 4, and 5, with the Court holding that an issue of fact remained that precluded any findings of immunity before trial.

         Defendant Storm filed an interlocutory appeal, and the United States Court of Appeals for the Eighth Circuit reversed this Court's failure to conclude that Storm was entitled to the qualified immunity privilege. Wenzel v. City of Bourbon, Missouri, 899 F.3d 598 (8th Cir. 2018). The Court of Appeals found from the record that defendant Storm acted reasonably and was thus entitled to qualified immunity on Count 1. Id. at 602.

         Defendant Storm's instant motion for reconsideration seeks a modification of the earlier order denying him summary judgment on the state law claims in Counts 3, 4, and 5, for wrongful death, assault, and battery. The Federal Rules of Civil Procedure do not include motions for reconsideration. Level 3 Comm., LLC v. Illinois Bell Telephone Co., 2019 WL 316569 at *3 (E. D. Mo. Jan. 24, 2019). However, a district court has the authority to reconsider a non-final order under F. R. Civ. P. 54(b), as well as “inherent power to reconsider and modify an interlocutory order any time prior to the entry of judgment.” L ...


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