Dack Downing v. Shannon Thompson and Western Flyer Express, LLC

Summary

The United States District Court for the District of Kansas denies Plaintiff Dack Downing’s motion for reconsideration of the dismissal of his negligence per se and attorney-fee claim under K.S.A. 66-176. The court also denies certification for interlocutory appeal under 28 U.S.C. § 1292(b), concluding that although controlling legal questions and substantial grounds for disagreement exist, an immediate appeal would not materially advance the litigation.

Holdings

1. Reconsideration is warranted only upon an intervening change in controlling law, newly available evidence, or the need to correct clear error or prevent manifest injustice; it is not an opportunity to reargue or repackage arguments previously rejected.
2. The court declined to reconsider its conclusion that Plaintiff could not maintain Count III insofar as it was premised solely on violations of the Federal Motor Carrier Safety Regulations.
3. On the pleaded facts, K.S.A. 8-1528(b), a generally applicable traffic statute requiring drivers to stop at a stop sign, is not a provision of law for the regulation of common carriers within the meaning of K.S.A. 66-176.
4. The court denied certification under 28 U.S.C. § 1292(b) because, although Plaintiff showed a controlling legal question and a substantial ground for difference of opinion, he failed to show that an immediate appeal would materially advance the ultimate termination of the litigation.

Questions Presented

1. Whether the court clearly erred or otherwise misapprehended the parties' arguments by dismissing Count III as impermissibly premised on violations of federal motor carrier safety regulations.
2. Whether Dietz v. Atchison, Topeka and Santa Fe Railway Company required reconsideration of the conclusion that Plaintiff's K.S.A. 66-176 claim was unavailable on the pleaded facts.
3. Whether K.S.A. 8-1528(b), a generally applicable traffic statute, is a provision of law for the regulation of common carriers within the meaning of K.S.A. 66-176.
4. Whether the order dismissing Count III satisfied all three requirements for certification of an interlocutory appeal under 28 U.S.C. § 1292(b).

Disposition

other