Case 5:15-cv-04947-SAC-KGS Document 66 Filed 07/22/16 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

MELVIN HALE, Ph.D.,

Plaintiff,
vs.

Case No. 15-4947-SAC-KGS

EMPORIA STATE UNIVERSITY, et al.,

Defendants.

O R D E R
This case is before the court upon Debra Rittgers motion
to alter or amend judgment.
court

to

modify

counterclaim

and

its
to

Doc. No. 59.

order
permit

(Doc.

No.

Rittgers

Rittgers asks the

57)

to

dismissing

proceed

with

her
the

counterclaim as part of an answer which Rittgers would file in

this action.
As of this date, Rittgers has not filed an answer in this
case.

She has filed a counterclaim (Doc. No. 33) and a motion

to dismiss (Doc. No. 41).

dismiss.

The court also dismissed Rittgers counterclaim upon

plaintiffs
answer.

The court granted Rittgers motion to

motion

because

it

was

filed

as

part

of

an

FED.R.CIV.P. 13(a) provides that counterclaims are to

be asserted in a pleading.
FED.R.CIV.P.
answer.

not

7(a)

to

A pleading is restricted in

complaint,

answer

or

reply

to

an

The court cited W&W Steel, LLC v. BSC Steel, Inc., 2012

Case 5:15-cv-04947-SAC-KGS Document 66 Filed 07/22/16 Page 2 of 3

WL 1828928 (D.Kan. 5/18/2012) and other cases in support of

dismissing the counterclaim.
Rittgers argues that the court should permit her to file an
answer with the counterclaim as the court did in W&W Steel.

The

difference

the

between

this

case

and

W&W

Steel

is

that

counterclaimant in W&W Steel had already filed an answer and had

not been dismissed from the case when the court permitted the
counterclaimant to assert an amended set of counterclaims with a
new answer.
Here, Rittgers cannot attach her counterclaims to an answer
which has not been filed.

And, she may not file an answer

because she has been dismissed from this case.

Cf., Sheldon v.

Amperex Electronic Corp., 52 F.R.D. 1 (E.D.N.Y.) affd, 449 F.2d

146

(2nd

Cir.

1971)(a

defendant

may

not

proceed

with

counterclaim which was served with an answer - after plaintiff

filed a Rule 41(a)(1) notice of dismissal of the defendant).
A

motion

to

alter

or

amend

judgment

pursuant

to

Fed.R.Civ.P. 59(e) may be granted only if the moving party can

establish (1) an intervening change in controlling law; (2) the
availability of new evidence that could not have been obtained
previously through the exercise of due diligence; or (3) the
need

to

correct

clear

error

or

prevent

manifest

injustice.

Wilkins v. Packerware Corp., 238 F.R.D. 256, 263 (D.Kan. 2006),

aff'd, 260 Fed.Appx. 98 (10th Cir. 2008).
2

For the reasons

Case 5:15-cv-04947-SAC-KGS Document 66 Filed 07/22/16 Page 3 of 3

given, Rittgers arguments fail to demonstrate good cause for

relief under Rule 59(e). Therefore, the motion to alter or amend
(Doc. No. 59) shall be denied.
IT IS SO ORDERED.
Dated this 22nd day of July, 2016, at Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge