United States District Court, E.D. Missouri, Eastern Division
D. NOCE UNITED STATES MAGISTRATE JUDGE
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).
reasons discussed below, the Court grants the motion and
dismisses the action.
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.
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.
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.
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.
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 ...