Faircloth v. Timme et al

Filing 176

ORDER Denying 172 Plaintiff's Motion To Alter, Amend &Vacate Judgment Pursuant to FRCP 59(e). Signed by Judge Robert E. Blackburn on 3/17/2016.(cmira)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-3317-REB-KLM
JAMES FAIRCLOTH,
Plaintiff,
v.
CORRECTIONAL OFFICER MARQUEZ, in his individual capacity, and
LT. TOM BENEZE, in his individual capacity,
Defendants.

ORDER DENYING PLAINTIFFS’ MOTION TO ALTER, AMEND
& VACATE JUDGMENT PURSUANT TO FRCP 59(e)
Blackburn, J.
The matter before me is Plaintiff’s Motion To Alter, Amend & Vacate
Judgment Pursuant to FRCP 59(e) [#172],1 filed February 24, 2016. Exercising my
prerogative under D.C.COLO.LCivR 7(d), I rule on the motion without awaiting the
benefit of a response. I deny the motion.
Procedurally, plaintiff’s invocation of Rule 59 is improper. A motion to alter or
amend the judgment under Rule 59(e) must be filed within 28 days of the entry of the
apposite judgment. FED. R. CIV. P. 59(e). Judgment in this case was entered January
26, 2016 [#169]. Twenty-eight days from that date was February 23, 2016. Plaintiff’s
motion, filed February 24, 2016, therefore is untimely. The court has no power to
extend this deadline. See FED. R. CIV. P. 6(b)(2). See also Weitz v. Lovelace Health
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“[#172]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

System, Inc., 214 F.3d 1175, 1179 (10th Cir. 2000); Collard v. United States, 10 F.3d
718, 719 (10th Cir. 1993). Nor does the three-day extension contemplated by Rule 6(d)
apply in this instance. See Parker v. Board of Public Utilities of Kansas City,
Kansas, 77 F.3d 1289, 1290 (10th Cir. 1996) (because mailbox rule extends deadline as
to any act that must be done “within a specified time after service,” rule is inapplicable to
deadline for filing timely motion under Rule 59(e), which is keyed to entry of date of
judgment, not service).
Yet even were I to consider plaintiff’s untimely motion, nothing therein warrants
relief from judgment under either Rule 59 or Rule 60(b).2 Plaintiff argues that I should
vacate the judgment in this case because he has received no notice of defendants’
renewed summary judgment motion or the court’s order granting same. This
circumstance is not at all surprising, however, given that plaintiff was (and still is)
represented by counsel.
At the time the court issued its Amended Order Lifting Stay and Directing
Submission of Dispositive Motions [#160], filed November 19, 2015, plaintiff was
represented by Ms. Elisabeth L. Owen. (See Minute Order [#153], filed September 3,

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Plaintiff fails to even acknowledge, must less cite, the applicable standard for granting relief
under Rule 59:
Grounds warranting a motion to reconsider include (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.
Thus, a motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law. It is
not appropriate to revisit issues already addressed or advance arguments
that could have been raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations omitted). The
standards for granting relief under Rule 60(b) are even more limited.

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2015 (granting Ms. Owen’s motion for leave to provide limited scope representation to
plaintiff in this matter).) Ms. Owen thus became plaintiff’s counsel of record at that
time.3 Despite the limited nature of Ms. Owen’s substantive representation, the
CM/ECF system has no mechanism for sending notices of electronic filing (“NEFs”) on
only some docket entries, but not others. Accordingly, once Ms. Owen entered her
appearance on plaintiff’s behalf, she became plaintiff’s legal representative and was the
person to whom the court’s CM/ECF system directed NEFs.
The court’s docket reflects that Ms. Owen has received NEFs as to all matters
docketed in this case since she entered her appearance. The court is entitled to and
does presume that Ms. Owen – who has not moved to withdraw her appearance and
thus remains counsel of record, see D.C.COLO.LAttyR 5(b) – has complied with her
professional and ethical obligations to keep plaintiff informed of all relevant filings in this
case, regardless of the limited nature of her representation. See ABA Guideline
10.5(C) (noting “obligation of counsel at every stage of the case to keep the client
informed of developments and progress in the case”). See also Strickland v.
Washington 486 U.S. 668, 688, 104 S.Ct. 62052, 2065, 80 L.Ed.2d 674 (1984) (noting
that ABA standards establish “[p]revailing norms of practice”). Any lapse in the
communication between attorney and client provides no grounds for vacating the

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The fact that plaintiff was represented by counsel is cause ipso facto to strike the motion. When
a party is represented by counsel, this court will not be bound to accept pro se filings. Such a pro se filing
is improper. See United States v. Nichols, 374 F.3d 959, 964 n.2 (10th Cir. 2004) (citing United States
v. Guadalupe, 979 F.2d 790, 795 (10th Cir. 1992)), reviewed on other grounds, 125 S.Ct 1082 (2005).
All pleadings and papers must be filed by counsel of record.

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judgment in this case.4
THEREFORE, IT IS ORDERED that Plaintiff’s Motion To Alter, Amend &
Vacate Judgment Pursuant to FRCP 59(e) [#172], filed February 24, 2016, is denied.
Dated March 17, 2016, at Denver, Colorado.
BY THE COURT:

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I note in addition that plaintiff fails to articulate any colorable argument to demonstrate
summary judgment was improvidently granted. Instead, he insists that he requires more discovery.
Plaintiff offers absolutely no indication as to how discovery has been inadequate or what evidence is still
needed, however. Coupled with the fact that this case had been pending more than three years at the
time judgment was entered, the court would not grant him leave to proceed on such a fishing expedition
in any event.

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