Black v. No Named Defendant
ORDER granting 8 Motion to Reopen Case, and denying as moot 9 Motion requesting status of case, by Judge Lewis T. Babcock on 12/11/15.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00340-LTB
[NO DEFENDANT NAMED],
ORDER GRANTING MOTION TO REOPEN CASE
Plaintiff Melissa Black has filed pro se, on April 30, 2015, a request to reopen this
case, ECF No. 8, in which she asks the Court to reconsider and vacate the Order of
Dismissal and the Judgment entered in this action on March 27, 2015. The Court
dismissed the instant action without prejudice because Plaintiff failed to comply with a court
order directing her to cure deficiencies within the time allowed. The Court must construe
the request liberally because Plaintiff is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). For the reasons discussed below, the request will be construed as a Motion to
Reconsider filed pursuant to Rule 60(b) and granted.
A litigant subject to an adverse judgment, and who seeks reconsideration by the
district court of that adverse judgment, may “file either a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment
pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243 (10th
Cir. 1991). A motion to alter or amend the judgment must be filed within twenty-eight days
after the judgment is entered. See Fed. R. Civ. P. 59(e). A motion under Rule 60(b) must
be made within a reasonable time, typically no more than a year after the entry of the
judgment or order or the date of the proceeding. The Court will consider Plaintiff’s request
as a Motion to Reconsider filed pursuant to Rule 60(b) because the motion was more than
twenty-eight days after the Judgment was entered but before one year after the Judgment
Rule 60(b) allows a court to grant relief from an order for the following reasons:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
fraud ..., misrepresentation, or misconduct by an opposing party;
the judgment is void;
the judgment has been satisfied, released or discharged ...; or
any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
Accordingly, a Rule 60(b) motion for reconsideration is appropriate where the court
has misapprehended the facts, a party’s position, or the controlling law. See Servants of
the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). The decision to grant relief
under Rule 60(b) is discretionary and Plaintiff has the burden to show that exceptional
circumstances exist that require the Court to amend or vacate a final judgment or order.
Servants of Paraclete, 204 F.3d at 1009.
On February 18, 2015, Magistrate Judge Gordon P. Gallagher reviewed the case
and determined that it was deficient because Plaintiff had failed to request leave to proceed
pursuant to 28 U.S.C. § 1915 or in the alternative to pay the $400 filing fee, and because
Plaintiff had failed to file a proper Complaint as opposed to the letter she filed, which
prompted the Court to open this case. Magistrate Judge Gallagher ordered Plaintiff to cure
the deficiencies within thirty days. Magistrate Judge Gallagher warned Plaintiff that the
action would be dismissed without further notice if she failed to comply within the time
allowed. Therefore, when Plaintiff had failed to comply with the February 18, 2015 Order
within the time allowed, the Court dismissed the instant action on March 27, 2015.
In her Motion to Reopen, Plaintiff asserts that when she opened this lawsuit, she
was in the process of moving to the State of Washington and provided her Colorado
address, from which she claimed mail was forwarded to Washington. She further informed
the Court that she would provide an updated address as soon as possible. She further
alleges that she did not receive the February 18, 2015, Order to Cure Deficiencies until
March 30, 2015. She further claims that on that date, she sent to the Clerk of Court the
documents required by the Order to Cure. On April 2, 2015, Plaintiff received the Order of
March 27, 2015, dismissing the case. She was in Kentucky from April 8, 2015, through
April 21, 2015, due to a death.
On April 22, 2015, Plaintiff received return of the set of documents that she had sent
to the Clerk on March 30, 2015. No explicative letter from the Court was included. On April
24, 2015, Plaintiff made a telephone inquiry to the Clerk's Office regarding the return of
materials by the Court and learned that the stamp "FILED" on the face of the original
complaint was in fact only indicative of the court having received documents and that the
case was closed. She requests that the the action be reopened based on these assertions.
Finding an excusable basis for not complying with the February 18, 2015 Order
within the time allowed, the Motion to Reopen will be granted. Accordingly, it is
ORDERED that Plaintiff’s Motion to Reopen Case, ECF No. 8, filed on April 30,
2015, is GRANTED. It is
FURTHER ORDERED that the Order of Dismissal and the Judgment, both filed on
March 27, 2015, are VACATED. It is
FURTHER ORDERED that the Clerk of the Court is directed to reinstate and return
this action to the Pro Se Docket. It is
FURTHER ORDERED that Plaintiff’s Motion requesting status of case is DENIED
as moot. It is
FURTHER ORDERED that Plaintiff cure the deficiencies noted in the February 18,
2015 Order within thirty (30) days from the date of this order. Any papers that Plaintiff
files in response to this order must include the civil action number on this order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Application to
Proceed in District Court Without Prepaying Fees or Costs (Long Form) and Title VII
Complaint forms, along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Plaintiff fails to cure the designated deficiencies
within thirty (30) days from the date of this order, the action will be dismissed
without further notice. The dismissal shall be without prejudice.
DATED at Denver, Colorado, this
day of December, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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