Buhendwa v. Regional Transportation District

Filing 97

ORDER. ORDERED that plaintiff Madina Buhendwa's Motions for Relief [Docket Nos. 76 , 77 , 78 , 79 , 90 are DENIED. ORDERED that plaintiff's motions requesting the Court provide information regarding outstanding motions in this case [Docket Nos. 88 , 89 are DENIED as moot. Signed by Judge Philip A. Brimmer on 12/27/16. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00720-PAB-CBS
MADINA BUHENDWA,
Plaintiff,
v.
REGIONAL TRANSPORTATION DISTRICT, University Based Pass/CU Student Bus
Pass,
(15) BOARD OF DIRECTORS, in their official capacities,
BILL JAMES,
BARBARA DEADWLER,
ANGIE RIVERA MALPIEDE,
JEFF WALKER,
CLAUDIA FOLSKA,
TOM TOBIASSEN,
GARY LASATER,
KENT BAGLEY,
JUDY LUBOW,
LARRY HOY,
PAUL DANIEL SOLANO,
LORAINE ANDERSON,
NATALIE MENTEN,
BRUCE DALY, and
CHARLES L. SISK,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Motion for Relief Rule 60(d) for
Fraud/Assault to the Court, and an Independent Action [Docket No. 76]. Plaintif f has
filed five other motions and an objection requesting similar relief. See Docket No. 77
(objecting to the Court’s order denying post-judgment motions); Docket No. 78
(requesting leave to address the Chief Judge of the United States Court of Federal

Claims); Docket No. 79 (requesting leave to file an interlocutory appeal); Docket No. 88
(requesting that the Court show cause why plaintiff’s motions should not be granted);
Docket No. 89 (requesting status for pending motions); Docket No. 90 (requesting relief
pursuant to Rule 61 and 28 U.S.C. § 2111). T he 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).
I. MOTION FOR RELIEF UNDER RULE 60(d)
In her motion for relief under Federal Rule of Civil Procedure 60(d), plaintiff
alleges that the defendants in this case misrepresented facts to the Court. Docket No.
76 at 3-6, ¶¶ 11-16. Rule 60(d) states that the rule does not lim it a court’s power to “set
aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3). “[O]nly the most
egregious misconduct, such as bribery of a judge or members of a jury, or the
fabrication of evidence by a party in which an attorney is implicated will constitute a
fraud on the court.” Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996)
(quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978). Fraud on the
court is construed narrowly because it may permit a party to overturn a judgment long
after it has become final. Id. at 553 (citing Fed. R. Civ. P. 60(b)). “Intent to defraud is
an absolute prerequisite to a finding of fraud on the court.” Id.
The Court finds that plaintiff has not demonstrated the requisite intent to defraud
required by Rule 60. While plaintiff alleges that various individuals misled the Court,
she does not allege that they fabricated evidence or did more than present legal
arguments that plaintiff does not credit as meritorious. Moreover, while plaintiff states
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that the defendants “succeeded in deceiving the court,” Docket No. 76 at 6, ¶ 17, the
Court’s order dismissing the case was based on principles of res judicata. Docket
No. 49 at 4-5. None of the allegations of fraud raised by plaintiff relate to the court’s
determination that dismissal was proper based on res judicata.
In addition to her claims related to Rule 60(d), plaintiff also argues in her motion
that the Court’s denial, Docket No. 75, of her previous motion under Rule 60 was
“broadly prejudicial” because the Court did not specify the subsection of Rule 60 that
governed the Court’s reasoning. Docket No. 76 at 3, ¶ 9-10. The order dismissing the
case stated that relief under “Fed. R. Civ. P. 60(b)(6)” was an improper vehicle to “cure
problems of lack of notice.” Docket No. 75 at 4. Thus, the Court’s order did, in fact,
specify the subsection of Rule 60.
II. OBJECTION TO THE COURT’S ORDER DENYING RELIEF UNDER RULE 60
Plaintiff objects to the Court’s December 3, 2015 order, Docket No. 75, denying
relief under Federal Rule of Civil Procedure 60 and denying her post judgment motions.
Docket No. 77. Because plaintiff appears to be seeking reconsideration of that order,
the Court will liberally construe her objection as a motion for reconsideration.
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d
858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s
plenary power to revisit and amend interlocutory orders as justice requires. See
Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.
1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would attend the repeated
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re-adjudication of interlocutory orders, judges in this district have imposed limits on their
broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (a pplying Rule
60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v.
McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or supporting facts which were
available at the time of the original motion.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000).
Plaintiff’s objection does not present any new evidence or newly established
legal authority. Instead, she details her efforts to figure out why she did not receive
notice of entry of judgment in this case and provides information regarding issues with
mail service in her neighborhood. Docket No. 77 at 3-7, ¶¶ 7-15. Plaintif f’s proffered
evidence does not suggest clear error on the part of the Court. In its prior order, the
Court took plaintiff at her word that she did not receive notice of entry of judgment in
this case. Docket No. 75 at 4. Plaintiff argues that because service was ineffective
under Rule 5, “[t]he court is unfairly denying the plaintiff, due process, right to appeal for
something beyond her control.” Id. at 7, ¶ 15. As an initial matter, service to plaintiff
was likely effective under Rule 5. Fed. R. Civ. P. 5(b)(2)(C) (service can be made by
“mailing it to the person’s last known address – in which event service is complete upon
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mailing”). Nevertheless, the Court previously noted that “[t]he 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.’” Docket No. 75 at 4
(quoting Clark v. Lavallie, 204 F.3d 1038, 1041 (10th Cir. 2000)).
The Court finds that plaintiff has offered no proper grounds for reconsideration of
the Court’s December 3, 2015 order.
III. MOTIONS FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. § 798(b) and 28
U.S.C. § 1292(d)(2)
Plaintiff requests leave to address the Chief Judge of the Court of Federal
Claims pursuant to 28 U.S.C. § 798(b) and 28 U.S.C. § 1292(d)(2), Docket No. 78, and
leave to apply for an interlocutory appeal under those statutes. Docket No. 79. Neither
of those statutes applies to this case or to this circumstance. Under 28 U.S.C.
§ 798(b),
[T]he chief judge of the Court of Federal Claims may issue an order authorizing a
judge of the court to conduct proceedings . . . in a foreign country whose laws do
not prohibit such proceedings, except that an interlocutory appeal may be taken
from such an order pursuant to section 1292(d)(2) of this title, and the United
States Court of Appeals for the Federal Circuit may, in its discretion, consider the
appeal.
28 U.S.C. § 798(b). Under 28 U.S.C. § 1292(d)(2), an interlocutory order entered under
28 U.S.C. § 798(b) or an interlocutory order issued by any judge of the United States
Court of Federal Claims may be appealed within ten days of the entry of such an order
under limited circumstances.
The statutes discussed by plaintiff do not apply to the facts here. The Chief
Judge of the Court of Federal Claims has not entered an order authorizing a judge to
conduct proceedings in a foreign country, nor has any judge of the United States Court
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of Federal Claims entered an interlocutory order. As such, plaintiff’s motions, even
liberally construed, do not present any grounds for relief.
IV. MOTION FOR RELIEF UNDER RULE 61 AND 28 U.S.C. § 2111
Plaintiff filed an additional motion apparently seeking relief related to Federal
Rule of Civil Procedure 61 and 28 U.S.C. § 2111, both of which discuss harmless error.
Docket No. 90. Plaintiff does not specify how those authorities provide for relief related
to this case. Plaintiff’s motion details alleged fraud by counsel for defendants, id. at 38, ¶¶ 6-21, error in the Court’s order dismissing the case, id. at 8-9, ¶¶ 22-23, and
defective notice of the entry of judgment. Id. at 10-11, ¶ 25-27.
Plaintiff’s motion is best construed as a motion for reconsideration because it
appears to ask the Court to reexamine the bases for its prior orders. As noted above,
reconsideration is appropriate where new evidence or legal authority has emerged or
the prior ruling was clearly in error. Plaintiff does not cite any legal authority that has
emerged since the case was decided. Nor does plaintiff offer any evidence that was
unavailable at the time of the Court’s prior rulings. As such, the Court finds that
reconsideration of the Court’s prior orders is unjustified.
V. OTHER MOTIONS
Plaintiff has two additional motions pending before the Court. Plaintiff requests
that the Court show cause why the motions before the Court should not be granted,
Docket No. 88, and Plaintiff requests information regarding the status of all motions
pending before the Court. Docket No. 89.
Plaintiff’s motion requesting a showing of cause consists of a single paragraph
stating that plaintiff “respectfully requests that this court show cause why these Motions
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should not be granted since a ruling procured through fraud is not a true ruling at all, no
time limits apply.” Docket No. 88 at 3, ¶ 6. The Court has addressed the outstanding
motions before the Court in this order and has shown why plaintiff’s requested relief is
inappropriate.
Similarly, plaintiff’s request for a status on the motions pending before the Court
is now largely moot given this order. However, the Court notes that plaintiff lists sixteen
outstanding motions before the Court, many of which have been previously resolved.
See Docket No. 75.
VI. FUTURE FILING RESTRICTIONS
Final judgment was entered in this case on March 12, 2015. Docket No. 50.
Since the entry of final judgment, plaintiff has filed a number of motions. See Docket
Nos. 51, 53, 54, 57, 58, 61, 62, 66, 71, 73, 76, 77, 78, 79, 88, 89, 90. Def endants in
this matter have filed a number of responses to plaintiff’s post-judgment motions.
Docket Nos. 52, 59, 60, 65, 70, 74, 80, 81, 82, 83, 91, 92, 93. None of plaintiff’s
motions has presented meritorious grounds for relief.
Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions in appropriate circumstances.
Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007) (citing Sieverding v. Colo.
Bar Ass’n, 469 F.3d 1340, 1343 (10th Cir. 2006); Tripati v. Beaman, 878 F.2d 351, 352
(10th Cir. 1989). Injunctions restricting further filings are appropriate where the litigant’s
lengthy and abusive history is set forth and the litigant receives notice and an
opportunity to oppose the court’s order before it is implemented. Id.

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This order will put plaintiff on notice that, in the event plaintiff files meritless
motions or requests in the future, the Court will impose filing sanctions against plaintiff.
See Judd v. Univ. of New Mexico, 1998 WL 314315 (10th Cir. Jun. 2, 1998)
(unpublished).
Accordingly, it is
ORDERED that plaintiff Madina Buhendwa’s Motions for Relief [Docket Nos. 76,
77, 78, 79, 90] are DENIED. It is further
ORDERED that plaintiff’s motions requesting the Court provide information
regarding outstanding motions in this case [Docket Nos. 88, 89] are DENIED as moot.

DATED December 27, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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