Simmerman v. Ace Bayou Corp.

304 F.R.D. 516, 2015 U.S. Dist. LEXIS 5792, 2015 WL 233255
CourtDistrict Court, E.D. Kentucky
DecidedJanuary 16, 2015
DocketCivil Action No. 5:14-382-DCR
StatusPublished
Cited by15 cases

This text of 304 F.R.D. 516 (Simmerman v. Ace Bayou Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmerman v. Ace Bayou Corp., 304 F.R.D. 516, 2015 U.S. Dist. LEXIS 5792, 2015 WL 233255 (E.D. Ky. 2015).

Opinion

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

On November 21, 2014 the Court denied Plaintiffs Andrew Simmerman and Terri Mills’s request for remand and dismissed all claims asserted against Defendant Teresa Spears. [Record No. 22] The plaintiffs now move the Court to alter or amend the November 21, 2014 Memorandum Opinion and [518]*518Order pursuant to Federal Rule of Civil Procedure 59(e). Alternatively, the plaintiffs ask the Court to vacate and set aside the prior opinion pursuant to Rule 60(b). [Record No. 33].

Neither of these rules provides an appropriate means to challenge a non-final order. Dierig v. Lees Leisure Indus., 2012 WL 669968, 2012 U.S. Dist. LEXIS 26181 (E.D.Ky. Feb. 28, 2012). Rule 59(e), by its own terms, applies only to judgments. Likewise, Rule 60(b) applies only to “final” orders and judgments. See Mallory v. Eyrich, 922 F.2d 1273, 1277 (6th Cir.1991); Payne v. The Courier-Journal, 193 Fed.Appx. 397, 400 (6th Cir.2006). The Court’s prior Memorandum Opinion and Order was not a final order; it did not dismiss all of the defendants, but instead left the plaintiffs with unresolved pending claims, and no separate judgment was entered. See Davey v. St. John Health, 297 Fed.Appx. 466, 469 (6th Cir.2008) (when a plaintiffs case has remaining claims, an order of dismissal as to less than all defendants is not a final order). No final order or judgment has been entered in this case.

The Sixth Circuit has held that district courts have inherent authority under Federal Rule of Civil Procedure 54(b) to reconsider interlocutory orders and re-open any part of a case prior to the entry of final judgment. Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed.Appx. 949, 959 (6th Cir.2004); Mallory, 922 F.2d at 1282. Rule 54(b) states, in relevant part:

[A]ny order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

Fed.R.Civ.P. 54(b). Generally, reconsideration of an interlocutory order is appropriate “when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.” Rodriguez, 89 Fed.Appx. at 959.

The plaintiffs contend that the November 21, 2014 order [Record No. 22] contained clear errors suitable for correction through a motion to reconsider. Specifically, they argue that the Court erred by: (i) applying the federal, rather than state, pleading standard; (ii) misinterpreting Kentucky case law regarding manager liability; and (iii) issuing its decision before the plaintiffs had an opportunity to fully bi’ief the issues. [Record No. 33-1, p. 3].

The plaintiffs’ first argument is that the Court impermissibly applied the federal pleading standards articulated in Federal Rule of Civil Procedure 8, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to state-law claims removed to federal court. They urge the Court to look to Kentucky’s pleading requirements, since the Complaint was originally filed in Kentucky state court. However, it is well-established that the Federal Rules of Civil Procedure apply to removed eases. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Stern v. Inter-Mountain Tel. Co., 226 F.2d 409 (6th Cir.1955). Although the Sixth Circuit has not addressed the issue since the Supreme Court’s ruling in Iqbal, federal district courts, including this Court, have consistently held that federal pleading requirements under Rule 8 and the Twombly-Iqbal standard apply to removed complaints, even where the state pleading standard is more lenient. See Vanhook v. Somerset Health Facilities, LP, 67 F.Supp.3d 810, 2014 WL 7075265, 2014 U.S. Dist. LEXIS 173721 (E.D.Ky., Dec. 15, 2014) (federal, not state, pleading standard applies to removed actions). Further, an analogous line of Sixth Circuit cases applies the Iqbal pleading standard to state-law claims in diversity cases. See Foust v. Stryker Corp., No. 2:10-cv00005, 2010 WL 2572179, 2010 U.S. Dist. LEXIS 69771 (S.D.Ohio Jun. 22, 2010) (applying Twombly pleading standard in a motion to dismiss state law claims); Wilkey v. Hull, 366 Fed.Appx. 634, 637 (6th Cir.2010) (unreported) (applying Twombly pleading standard in a diversity ease to assess the factual plausibility of the plaintiffs state-law claims).

The Federal Rules of Civil Procedure also address this situation. Rule 81(c) specif[519]*519ically provides that “[t]hese rules apply to a civil action after it is removed from a state court.” Fed.R.Civ.P. 81(c)(1). The Supreme Court has noted that this “expansive language contains no express exceptions.” Willy v. Coastal Corp., 503 U.S. 131, 134, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). In short, the Rule 8 pleading standards apply to all district court proceedings, including those that originated in state courts. See Vanhook, 2014 WL 7075265 at *2-3, 2014 U.S. Dist. LEXIS 173721 at *6.

The plaintiffs’ Complaint was initially filed in Fayette Circuit Court, where, as they correctly note, notice pleading standards apply. E.g., Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky.2005). Even so, once this action was removed to this court, the Federal Rules of Civil Procedure—including Rule 8(a)(2) and the plausibility pleading standard articulated in Iqbal and Twombly—apply. Thus, the plaintiffs’ first argument does not supply a basis for the Court to reconsider and set aside its prior determination.

The plaintiffs’ second ground for reconsideration suggests that “the Court concluded that a manager of a retailer owes no duties to the purchaser of a defective product.” [Record No. 33-1, p. 3] This characterization seriously misstates the Court’s Order.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cobble v. T-Mobile Sprint
W.D. Kentucky, 2025
Wooden v. Lee
W.D. Tennessee, 2024
Peach v. Hagerman
W.D. Kentucky, 2023
Moran v. Wal-Mart, Inc.
E.D. Kentucky, 2022
Simmons v. ALPLA, Inc.
W.D. Kentucky, 2022
EEOC v. HP Pelzer Auto. Sys.
Sixth Circuit, 2020
Little v. Butler
E.D. Kentucky, 2020
Hammons v. Barkdull
E.D. Kentucky, 2020
Cooke v. Bevin
E.D. Kentucky, 2019

Cite This Page — Counsel Stack

Bluebook (online)
304 F.R.D. 516, 2015 U.S. Dist. LEXIS 5792, 2015 WL 233255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmerman-v-ace-bayou-corp-kyed-2015.