Buhendwa v. Regional Transportation District
ORDER. ORDERED that plaintiff Medina Buhendwa's Motions for Relief [Pursuant to Fed. R. Civ. P.] 60 [Docket Nos. 66, 71] are DENIED. It is further ORDERED that, final judgment having been entered in this matter, plaintiffs post judgment motions [Docket Nos. 51, 53, 54, 57, 58, 61, 62, 73] are DENIED as moot. Signed by Judge Philip A. Brimmer on 12/03/15.(jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00720-PAB-CBS
REGIONAL TRANSPORTATION DISTRICT, University Based Pass/CU Student Bus
(15) BOARD OF DIRECTORS, in their official capacities,
ANGIE RIVERA MALPIEDE,
PAUL DANIEL SOLANO,
BRUCE DALY, and
CHARLES L. SISK,
This matter is before the Court on the Motion for Relief pursuant to Fed. R. Civ.
P. 60 [Docket No. 66] filed by plaintiff Madina Buhendwa on September 14, 2015. Final
judgment in this matter entered in favor of defendants on March 12, 2015. Docket No.
50. Thus, plaintiff’s motion for relief was filed 186 days after entry of final judgment.
After entry of final judgment, plaintiff filed a number of post-judgment motions, the
earliest of which is dated April 28, 2015. Docket No. 51. 1 The Court takes those
motions up in this order as well. In light of plaintiff’s pro se status, the Court construes
her filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
In her motion for relief, plaintiff claims not to have received timely notice of the
entry of judgment and requests additional time in which to file a notice of appeal. See
Docket No. 66 at 3, ¶ 7. Plaintiff attaches an affidavit in which she states that she
“never received documentation of any kind” regarding the entry of judgment. Docket
No. 66-1 at 2. Plaintiff does not explain the circumstances or the date on which she
received notice of the entry of judgment, but argues that an injustice would occur if
plaintiff were not allowed to file a notice of appeal. Docket No. 66 at 3, ¶ 9. Defendants
argue that plaintiff’s motion is barred by Rule 4(a)(6) of the Federal Rules of Appellate
Procedure, which authorizes a district court to reopen the time to file an appeal only if a
motion seeking such relief is brought within 180 days of the judgment. Docket No. 70
at 4. Defendants further note that, in separate filings, Docket Nos. 63 at 3, 64 at 8,
Plaintiff’s post-judgment motions are: (1) Motion for Entry of Judgment on the
Remaining Part of the Claims Unresponded To, Lost Right for Objection/Consent by
Default [Docket No. 51]; (2) Motion for Entry of Judgment and Default Judgment
Pursuant to Fed. R. Civ. P. 55 [Docket No. 53]; (3) Motion for Leave to Petition
Pursuant to Colorado Appellate Rule 21 [Docket No. 54], (4) Motion f or Rule 36
Requests for Admission [Docket No. 57]; (5) Motion for Rule 50 Judgment as a Matter
of Law [Docket No. 58]; (6) Motion for Entry of Judgment for Admission Rule 36 [Docket
No. 61]; (7) Motion for Judgment on the Pleadings Pursuant to Fed. R. Civ. P. 12(c)
[Docket No. 62]; (8) Motion for Relief [Docket No. 66]; and (9) Motion Requesting
Hearing [Docket No. 73]. In addition, plaintiff submitted a letter to the Court dated
September 21, 2015 [Docket No. 71] that accuses def endants of misleading the Court
and states that the Court ignored certain evidence. As plaintiff discusses the Court’s
grounds for dismissing this action in her letter, id. at 2, the Court will construe the letter
as a second motion for relief from a judgment pursuant to Fed. R. Civ. P. 60.
plaintiff acknowledged that she received a letter from defendants that put her on notice
of the judgment before the expiration of the 180-day deadline. Id. at 5.
Rule 77(d) of the Federal Rules of Civil Procedure governs service of notice of
an order or judgment. Rule 77(d)(1) states that, “[i]mmediately after entering an order
or judgment, the clerk must serve notice of the entry . . . on each party who is not in
default for failing to appear. The clerk must record the service on the docket.” Rule
77(d)(2) provides that “[l]ack of notice of the entry does not affect the time for appeal or
relieve – or authorize the court to relieve – a party for failing to appeal within the time
allowed, except as allowed by Federal Rule of Appellate Procedure 4(a).”
Federal Rule of Appellate Procedure 4(a)(6) gives the Court discretion to reopen
the time to file an appeal if the following conditions are met:
(A) the court finds that the moving party did not receive notice under Federal
Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to
be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered
or within 14 days after the moving party receives notice under Federal Rule
of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C) the court finds that no party would be prejudiced.
Fed. R. App. P. 4(a)(6). 2
Federal Rule of Appellate Procedure 4(a)(4)(A) contemplates extension of the
time to appeal upon a party timely filing certain motions, including motions pursuant to
Fed. R. Civ. P. 50(b), 52(b), 54, 59, and 60. Fed. R. App. P. 4(a)(4)(A)(i)-(vi). For a
motion pursuant to Rule 60 to extend the deadline to file an appeal, the motion must be
filed no later than 28 days after entry of judgment. Fed. R. App. P. 4(a)(4)(A)(vi).
Plaintiff, therefore, did not file any timely motions that entitle her to extend the deadline
for her appeal pursuant to Rule 4(a)(4)(A).
Although the docket reflects that notice of the March 12, 2015 judgment was
mailed to plaintiff at the only address she has provided, and although plaintiff has timely
responded to other filings for which she received mail service at the same address,3 for
the purpose of resolving this motion the Court will take plaintiff at her word that she did
not receive timely notice of the entry of judgment. The Court, however, does not have
discretion to grant the relief that plaintiff seeks.
Plaintiff filed this motion on September 14, 2015. See Docket No. 66. The 180day period from entry of judgment expired September 8, 2015. The Tenth Circuit has
held that “the specificity of [Fed. R. App. P.] 4(a)(6) and [Fed. R. Civ. P.] 77(d)
precludes the use of Fed. R. Civ. P. 60(b)(6) to cure problems of lack of notice.” Clark
v. Lavallie, 204 F.3d 1038, 1041 (10th Cir. 2000) (citing Zimmer St. Louis, Inc. v.
Zimmer Co., 32 F.3d 357, 361 (8th Cir. 1994)) (quotation omitted). The Tenth Circuit
stated that “[t]he essence of [Fed. R. App. P.] 4(a)(6) is finality of judgment” and that,
“[w]hile application of that concept infrequently may work misfortune, it is an overriding
principle which demands enforcement without distinction between counseled and
uncounseled cases.” Id. Thus, even in cases of “excusable neglect,” the Court may
not grant plaintiff’s untimely motion for relief from judgment. Id.4
On February 20, 2015, plaintiff filed a timely objection to the Recommendation
of United States Magistrate Judge Craig B. Shaffer. See Docket No. 42. The docket
reflects that the magistrate judge’s recommendation was served on plaintiff at the same
address as the entry of judgment.
The Court further notes that, according to plaintiff’s own filings, she was likely on
notice of the entry of judgment before the September 8, 2015 deadline to file a motion
to reopen the time to appeal. Specifically, in a filing unrelated to this motion, plaintiff
attached a copy of a letter from defendants’ counsel dated August 20, 2015. See
Docket No. 64 at 8. Defendants’ letter informed plaintiff that this case “was dismissed
The Court now turns to plaintiff’s ex parte letter, Docket No. 71, which the Court
construes as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60. See
supra n.1. Plaintiff’s letter, like her September 14, 2015 motion for relief, is barred by
Fed. R. App. P. 4(a)(6) because it was filed more than 180 days after entry of judgment.
Moreover, even if the Court considered plaintiff’s letter, plaintiff cannot demonstrate her
entitlement to relief from judgment. Plaintiff appears to argue that the Court’s order
dismissing this case was based on defendants’ misleading statements concerning the
existence of a contract between the Regional Transportation District (“RTD”) and the
University of Colorado. See Docket No. 71 at 1. The Court, however, did not rely on
any evidence presented by defendants. See generally Docket No. 49. The sole basis
for the Court’s order was that plaintiff’s federal claims are barred by the doctrine of res
judicata due to the judgment entered against plaintiff in her previous lawsuit against
RTD. Id. at 5. Plaintiff’s letter, even if it were timely, provides no basis to revisit that
nearly half a year ago.” Id.
Plaintiff’s letter disputes the Court’s finding that RTD and its individual board
members were in privity with one another. See Docket No. 71 at 2. None of the cases
that plaintiff cites, however, calls into question the Court’s finding that officers of a
government agency are in privity with that agency for res judicata purposes. In Henisse
v. First Transit, Inc., the Colorado Supreme Court held that an RTD driver employed by
a private contractor was not a “public employee” for purposes of the Colorado
Governmental Immunity Act. 247 P.3d 577, 581 (Colo. 2011). In S.O.V. v. People ex
rel. M.C., the Court found that a minor child was not a party to an earlier action to
determine the identity of the child’s father because the child was not in privity with the
state. 914 P.2d 355, 360 (Colo. 1996). Finally, in New Crawford Valley, Ltd. v.
Benedict, the Colorado Court of Appeals held that a corporation is a distinct legal entity
from its officers, directors, and stockholders for res judicata purposes. 877 P.2d 1363,
1368 (Colo. App. 1993).
Accordingly, it is
ORDERED that plaintiff Medina Buhendwa’s Motions for Relief [Pursuant to Fed.
R. Civ. P.] 60 [Docket Nos. 66, 71] are DENIED. It is further
ORDERED that, final judgment having been entered in this matter, plaintiff’s postjudgment motions [Docket Nos. 51, 53, 54, 57, 58, 61, 62, 73] are DENIED as moot.
DATED December 3, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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