SAM A. CROW, U.S. District Judge
This case comes before the court on plaintiff's "motion to alter or amend judgment pursuant to FRCP 59 and/or motion to amend complaint pursuant to FRCP 15." (Dk. 16). Plaintiff takes issue with certain rulings made in this court's order granting defendant's motion to dismiss. (Dk. 14).
Although two plaintiffs filed this case, plaintiff Stearns has been dismissed, and no challenge is made to the court's ruling that she lacked standing. Accordingly, the court will use the singular reference throughout this order, referring only to plaintiff Schmidt.
Motion to Alter or Amend
Plaintiff's motion to alter or amend was properly filed within ten days of the entry of judgment in this case. See Fed.R.Civ.P. 59(e). Motions to alter or amend give the court an opportunity to correct manifest errors of law or fact, to hear newly discovered evidence or to consider a change in the law. Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992); Renfro v. City of Emporia, Kan., 732 F. Supp. 1116, 1117 (D.Kan. 1990), aff'd, 948 F.2d 1529 (10th Cir.), cert. dismissed, 503 U.S. 915 (1992).
Plaintiff states that she does not challenge the court's rulings that Darlene Stearns lacked standing to pursue this case, that the issues regarding the display of the original posters are moot and/or their display was not unconstitutional, and that plaintiff's free speech claims stated in her "Second Cause of Action," should be dismissed. (Dk. 16, p. 2.) Plaintiff does not attempt to show the court any newly discovered evidence or allege a change in the law. Instead, plaintiff alleges only manifest errors of law or fact.
Plaintiff specifically states in its motion to alter or amend that it does not challenge the court's findings and conclusions regarding these three specific issues. Plaintiff's brief then states, without explanation: "Plaintiffs do not challenge the other findings and conclusions reached by this Court in its order." (Dk. 16, p. 2, last sentence.) However, plaintiff's brief does in fact raise challenges to the court's other findings and conclusions. The court presumes the quoted statement is a result of plaintiff's inadvertence, rather than of plaintiff's intent, and will ignore it.
The chief error, and the sole alleged error of fact, is that the court found that "no copy of any letter [written by defendant to plaintiff Schmidt] is included in the record before this court." (Dk. 16, p. 2, quoting Order, Dk. 14 at p. 4.) Plaintiff affirmatively, but erroneously states: "plaintiffs attached a copy of this letter, a copy of Defendant's subsequent letter to ACLU Executive Director Dick Kurtenbach, and a copy of the Bible tract included by Defendant with some of her official correspondence were attached (sic) to the original Complaint . . ." (Dk. 16, p. 2.)
In response to plaintiff's motion, the court has once again reviewed the file for the express purpose of re-examining the only complaint filed with the Clerk of the District Court. That pleading does not indicate that any documents are attached thereto or incorporated therein, and no documents are attached thereto unless one counts plaintiffs' verifications. (Dk. 1.) Nor do any copies of plaintiff's complaint in the court's possession contain any of the documents to which plaintiff refers. Plaintiff never attached or included any such documents in any pleading before this court or otherwise, until plaintiff attached them and others to its proposed amended complaint appended to the present motion. Although plaintiff may have intended to attach letters or other documents to her complaint, the simple fact is that she failed to do so.
As the court stated in its order, the court accepted as true plaintiff's well-pleaded facts, and viewed all reasonable inferences from those facts in plaintiff's favor. The court specifically noted plaintiff's allegations made in the complaint regarding the letter by defendant Cline to plaintiff, and the Bible tract. See Dk. 14, p. 27, n. 15. The court did not accept plaintiff's conclusory assertions as true, as is standard practice in deciding motions to dismiss. The motion to dismiss was decided on the face of plaintiff's complaint, which did not incorporate any other documents whatsoever. Under these circumstances, the only error, be it immaterial or crucial, was made not by the court, but by plaintiff's counsel in failing to attach to the complaint documents which she now alleges were fundamental to the court's decision.
The omitted documents cannot constitute "newly discovered evidence," which would warrant alteration of the judgment, because plaintiff admits she had them in her possession at the time she filed the complaint.
Motions to alter or amend should not be used to introduce evidence that was available but was not presented at the time the court ruled on the motions for summary judgment. (Citation omitted.)
Four Circle Co-op v. Kansas State Bank Trust Co., 1992 WL 123682, at *2 (D.Kan. Apr. 10, 1992). "[A] party's failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion to amend." Paramount Pictures Corp. v. Video Broadcasting Systems., Inc., 1989 WL 159369, at *1 (D.Kan. Dec. 15, 1989).
The bulk of plaintiff's brief is devoted to rearguing points of law regarding plaintiff's standing and the establishment clause. The court fully and squarely addressed these issues in its order, and has been shown no need to revisit them herein. A motion to alter or amend should not be used as "a vehicle for the losing party to rehash arguments previously considered and rejected by the district court. (Citation omitted.)" Four Circle Co-op, 1992 WL 123682 at *2. Although plaintiff's brief cites cases not relied upon in her response to defendant's motion to dismiss, none of those cases was recently decided, nor has plaintiff shown the court any manifest error in its legal analysis. Plaintiff's motion to alter or amend the judgment will therefore be denied.
Motion To Amend Complaint
Judgment has been entered on this case. (Dk. 15). It is clear that "once judgment is entered, the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b)." Seymour v. Thornton, 79 F.3d 980, 987 (10th Cir. 1996) quoting Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985). Judgment has not been set aside, as detailed above, thus plaintiff's motion to amend her complaint must necessarily be denied, and her separate motion to correct her proposed amended complaint is moot.
IT IS THEREFORE ORDERED THAT plaintiff's motion to alter or amend judgment (Dk. 16) is denied.
IT IS FURTHER ORDERED THAT plaintiff's motion to amend her complaint (Dk. 16) is denied.
IT IS FURTHER ORDERED THAT plaintiff's motion to correct possible error in pleading (Dk. 19) is denied as moot.