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Umpo Kills In Sight v. Sutaria

United States District Court, D. South Dakota, Western Division

May 5, 2014

UMPO KILLS IN SIGHT, As Special Administrator of the Estate of CLEVELAND KILLS IN SIGHT, Deceased, Plaintiff,
v.
DR. SHILPA M. SUTARIA, VISTA STAFFING SOLUTIONS, INC., and THE UNITED STATES, Individually, Jointly and Severally, Defendants.

ORDER

JEFFREY L. VIKEN, Chief District Judge.

Plaintiff Umpo Kills In Sight, as Special Administrator of the Estate of Cleveland Kills in Sight, filed a complaint against defendants Dr. Shilpa M. Sutaria, Vista Staffing Solutions, Inc., and the United States. (Docket 1) Plaintiff asserted claims against Dr. Sutaria for assault and battery, negligent infliction of emotional distress, and intentional infliction of emotional distress. Id . On February 21, 2013, Dr. Sutaria filed a renewed motion for summary judgment asserting plaintiff's summons and complaint were improperly served and plaintiff's claims are barred by the applicable statutes of limitation. (Docket 65). On September 26, 2013, the court granted Dr. Sutaria's motion for summary judgment on the basis service of process was improper and untimely. (Docket 97). The court dismissed plaintiff's claim for assault and battery with prejudice and dismissed plaintiff's claims for negligent infliction of emotional distress and intentional infliction of emotional distress without prejudice. Id.

On November 18, 2013, plaintiff filed a motion for reconsideration pursuant to Fed.R.Civ.P. 54(b). (Docket 98). Fed.R.Civ.P. 54(b) states:

When an action presents more than one claim for relief-whether as a claim, counterclaim, crossclaim, or third-party-claim-or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all of the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed. R. Civ. P. 54(b).

Plaintiff requests the court reconsider its order granting Dr. Sutaria's motion for summary judgment and find personal service on Dr. Sutaria was sufficient and timely served within the three-year statute of limitation. (Docket 99). Specifically, the plaintiff requests the court find Dr. Sutaria was personally served with both the summons and complaint on July 31, 2012, and that the service on July 31, 2012, was legally effective. Id.

Federal Rule of Civil Procedure 60 provides the following grounds for relief from a final judgment or order:

On motion and just terms, the court may relieve a party... from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud..., misrepresentation, or misconduct by an opposing party;...
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

A district court's decision on a motion for reconsideration rests within its discretion. Hagerman v. Yukon Energy Corp. , 839 F.2d 407, 414 (8th Cir. 1988). "Motions for reconsideration serve a limited function: to correct manifest errors of ...


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