United States District Court, W.D. Missouri, Western Division
GENE E. DUDLEY, SR. Plaintiff,
COSTCO WHOLESALE CORPORATION, ET AL Defendant.
STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion for Reconsideration or,
in the Alternative, Application for Notice of Appeal (Doc.
#15). For the reasons stated below, the Motion is denied.
specific rule in the Federal Rules of Civil Procedure
references motions to reconsider. OpenMethods, LLC v.
Mediu, LLC, No. 10-761-CV-W-FJG, 2012 WL 2736471, at *3
(W.D. Mo. July 9, 2012). Federal Rule of Civil Procedure
60(b) sets forth the circumstances in which the Court may
“relieve a party . . . from a final judgment, order, or
proceeding[.]” “Rule 60(b) motions should not be
granted as a result of reargument of the merits . . .
.” OpenMethods, LLC, 2012 WL 2736471, at *3
(internal citations omitted). Instead, “[u]nder Eighth
Circuit law a party moving for reconsideration pursuant to
any portion of Rule 60(b) must establish exceptional
circumstances to obtain the extraordinary relief the rule
provides.” Discount Tobacco Warehouse,
Inc. v. Briggs Tobacco and Specialty Co., Inc., No.
3:09-CV-05078-DGK, 2010 WL 3522476, at *1 (W.D. Mo. Sept. 2,
2010) (internal citations omitted). These circumstances include:
mistake, inadvertence, surprise, excusable neglect, newly
discovered evidence that could not have been discovered with
reasonable diligence, fraud, the judgment being void, and
satisfaction, release, or discharge of the judgment.
Fed.R.Civ.P. 60(b). In this Circuit “relief for judicial
error under Rule 60(b)(1)-the section dealing with
mistake[-]is only available for judicial inadvertence.”
OpenMethods, LLC, 2012 WL 2736471, at *3 (citing
Lowry v. McDonnell Douglas Corp., 211 F.3d 457,
460-61 (8th Cir. 2000)). The Court construes Plaintiff's
motion as a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b).
Court finds Plaintiff's motion must be denied. Plaintiff
presents no new argument in favor of being allowed to amend
his complaint. Plaintiff argues this Court failed to properly
follow Johnson v. City of Shelby, 574 U.S. 10
(2014), which Plaintiff claims stands for the proposition
that the federal rules require “a short and plain
statement of the claim, ” even if there is an
“imperfect statement of the legal theory supporting the
claim asserted.” Id. at 11 (internal citations
omitted). In Johnson, the Supreme Court found that
the failure to cite to 42 U.S.C. § 1983 did not warrant
dismissal. Id. As more fully discussed in this
Court's prior Order, Plaintiff cited to § 504 of the
Rehabilitation Act in his Complaint but did not allege any
facts that would give rise to a cause of action against
Defendants. The Court finds relief from judgment is not
warranted. In the alternative Plaintiff asks that he be
permitted “to exercise those rights to pursue an
appeals (sic)[.]” The Court construes Plaintiff's
request as a motion for extension of time to file a notice of
appeal. Such an extension is unnecessary pursuant to Federal
Rule of Appellate Procedure 4(a)(iv) given that the Court
construed Plaintiff's Motion as one under Rule 60. The
request is therefor denied as moot as Plaintiff has thirty
days from the date of this Order to file a notice of appeal.
Plaintiff's Motion for Reconsideration or, in the
Alternative, Application for Notice of Appeal (Doc. #15) is
IS SO ORDERED.
 A motion to reconsider is generally
construed as a Rule 59(e) motion if it is a motion to alter
or amend a judgment. Discount Tobacco Warehouse,
Inc., 2010 WL 3522476, at *1.
 Fed. R. Civ. P 60(b), in full, reads:
Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an ...