Ramsey et al v. Citimortgage, Inc. et al

Filing 49

ORDER denying 47 Plaintiffs' Motion to Alter or Amend Judgment and Motion for Relief from Judgment, by Chief Judge Wiley Y. Daniel on 12/21/2011.(wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02653-WYD-CBS
MASON L. RAMSEY, a/k/a Mason L. Ramsey; and
JUDITH MAE NEVILLE, a/k/a Judith Mae Neville,
Plaintiffs,
v.
CITIBANK, N.A.; and
JOHN & JANE DOES 1-50,
Defendants.

ORDER

THIS MATTER is before the Court on Plaintiffs’ Motion to Alter or Amend
Judgment and Motion for Relief from Judgment and Memoranda in Support of Each
Motion (filed October 11, 2011). Defendants Citibank, N.A. and Citimortgage, Inc. filed
a response in opposition to the motion on November 4, 2011. No reply was filed.
Plaintiffs’ motion seeks alteration, amendment or relief from the Final Judgment
entered on September 29, 2011. Since the motion was filed within 28 days of the
Judgment, the motion is properly construed under Fed. R. Civ. P. 59(e). There are
three major grounds that justify reconsideration under Rule 59(e): “(1) an intervening
change in the controlling law; (2) new evidence previously unavailable; and
(3) the need to correct clear error or prevent manifest injustice.” Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Thus, a motion seeking reconsideration
of the judgment “is appropriate where the court has misapprehended the facts, a party’s

position, or the controlling law.” Id. Such a motion “is not appropriate to revisit issues
already addressed or advance arguments that could have been raised in prior briefing.”
Id.; see also Mantle Ranches, Inc. v. U.S. Park Serv., 950 F. Supp. 299, 300 (D. Colo.
1997) (“‘a motion for reconsideration is not a license for a [party] to get a ‘second bite at
the apple’ and make legal arguments that could have been raised before”).
In the case at hand, Plaintiffs propose several reasons why the Court should
reconsider the entry of judgment against them. However, most of those arguments
were already advanced before the Court and rejected, both by Magistrate Judge Shaffer
and by me. Further, Plaintiffs have not shown that there has been an intervening
change in the controlling law or that there is new evidence that was not accounted for
by the Court.
Thus, Plaintiffs must show that reconsideration of the judgment is appropriate to
correct a clear error of law or to prevent manifest injustice. I find that Plaintiffs have not
made this showing. First, they have not argued manifest injustice. Second, while
Plaintiffs argue that I misapprehended the law, I reject that argument. For example,
Plaintiffs cite to cases which I previously found were inapplicable, such as Osborn v.
Bank of United States, 22 U.S. 738 (1824), Easton v. Iowa, 188 U.S. 220 (1903),
Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374 (1995), and Lindsey v. Normet, 405
U.S. 56 (1972). Plaintiffs continue to make the same arguments about these cases and
do not address why my findings that the cases are inapplicable are erroneous.
Further, Plaintiffs attempt to make new arguments that could and should have
been raised before, such as their argument that they were deprived of due process in
-2-

the Rule 120 proceeding in state court because Defendants were not required to show
standing by clear and convincing evidence. They also improperly attempt to revive an
equal protection claim that was not asserted in their First Amended Verified Complaint
and which the Recommendation declined to consider. Plaintiffs did not object to that
finding in the Recommendation and cannot raise the issue now. Ultimately, I agree with
Defendants that Plaintiffs’ motion is essentially an attempt to get a third bite at the
apple, since Plaintiffs have had the opportunity to advance their arguments previously
both to Magistrate Judge Shaffer and to me. Accordingly, it is
ORDERED that Plaintiffs’ Motion to Alter or Amend Judgment and Motion for
Relief from Judgment (ECF No. 47) is DENIED.
Dated this 21st day of December, 2011.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

-3-