Kreps v. Dependable Sanitation, Inc. et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TRACI J. KREPS, as Personal
Representative for the Estate of Mark L.
Kreps; and MARK L. KREPS,
Plaintiffs,
vs.
DEPENDABLE SANITATION, INC., and
CRAIG O. WEST,
Defendants.
4:21-CV-04108-KES
ORDER DENYING
MOTION TO RECONSIDER
ROCHELLE A. CONNELLY, as personal
representative for the Estate of Steven
L. Connelly; and ESTATE OF STEVEN
L. CONNELLY,
Plaintiffs,
vs.
DEPENDABLE SANITATION, INC., and
CRAIG O. WEST,
Defendants.
4:21-CV-04118-KES
ORDER DENYING
MOTION TO RECONSIDER
Defendants, Dependable Sanitation, Inc. and Craig O. West
(Dependable), move under Federal Rules of Civil Procedure 59 and 60 to
reconsider the court’s order of October 8, 2021, denying Dependable’s motions
to consolidate the above-captioned cases. CV 21-4108 Docket 19; CV 21-4118
Docket 19. Plaintiff, Traci Kreps, does not oppose reconsideration and
consolidation so long as the Connelly case is consolidated into the Kreps case.
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CV 21-4108 Docket 21. Plaintiff, Rochelle Connelly, opposes Dependable’s
motion to reconsider and consolidate. CV 21-4118 Docket 21.
The federal rules do not provide for a motion for reconsideration.
Needham v. White Lab’y, Inc., 454 U.S. 927, 930 n.1 (1981) (Rehnquist, J.,
dissenting). A party moving for reconsideration “leave[s] the characterization of
the motion to the court’s somewhat unenlightened guess . . . .” Sanders v.
Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988). Courts will scan the federal
rules to recast the relief sought to conform to the rules. Id. Typically, courts
characterize a motion to reconsider as a motion made under Rule 59(e) or
60(b). Spinar v. S.D. Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir. 1986).
Because Dependable’s motion is directed to an order of the court but not
a judgement, the court construes this as a Rule 60(b) motion. Broadway v.
Norris, 193 F.3d 987, 989 (8th Cir. 1999). Rule 60(b) provides that “[o]n motion
and just terms, the court may relieve a party . . . from a[n] . . . order” based on
at least one of six enumerated reasons. Dependable did not identify a specific
reason enumerated under the Rule. The court construes the motion under Rule
60(b)(6)’s catch-all provision: “any other reason that justifies relief.” In any
event, whether under the catch-all provision or another reason enumerated in
the Rule, “[a] district court should grant a Rule 60(b) motion ‘only upon an
adequate showing of exceptional circumstances.’ ” Richards v. Aramark Servs.,
Inc., 108 F.3d 925, 927 (8th Cir. 1997) (quoting United States v. Tracts 10 & 11
of Lakeview Heights, 51 F.3d 117, 120 (8th Cir. 1995)). The court has “wide
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discretion” in ruling on a Rule 60(b) motion. Jones v. Swanson, 512 F.3d 1045,
1048 (8th Cir. 2008).
Here, the court reviewed its order of October 8, 2021, as well as the
additional briefing on the issue of consolidation that accompanied the pending
motions to reconsider. The court “find[s] no application of an erroneous view of
the law or erroneous assessment of evidence by the district court,” and
Dependable has not identified exceptional circumstances justifying
reconsideration. Richards, 108 F.3d at 927. Thus, the court declines to
reconsider the motions to consolidate both on the merits and on procedural
grounds, see Symens v. Smithkline Beecham Corp., 19 F. Supp. 2d 1062, 1069-
70 (D.S.D. 1997) (rev’d in part on other grounds, 152 F.3d 1050 (8th Cir.
1998)), and it is
ORDERED that Dependable’s motions to reconsider (CV 21-4018 Docket
19; CV 21-4118 Docket 19) are denied.
Dated December 6, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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