Tso v. Murray

Filing 308

ORDER Denying 295 Motion for Reconsideration, by Judge William J. Martinez on 2/20/2019. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2480-WJM-STV
GILBERT T. TSO, individually, and as the parent and on behalf of M.X.T.,
Plaintiff,
v.
REBECCA MURRAY, individually;
TANYA AKINS, individually and official capacities;
SHERR PUTTMAN AKINS LAMB PC, a law firm;
JEANNIE RIDINGS, individually and official capacities;
KILILIS RIDINGS & VANAU PC, a law firm;
RUSSELL M. MURRAY, individually;
DENA MURRAY, individually;
JOANNE JENSEN, individually;
DAVID P. BRODSKY, individually and official capacities;
ELIZABETH A. STARRS, individually and official capacities;
CHARLES D. JOHNSON, individually and official capacities;
ROSS B. H. BUCHANAN, individually and official capacities;
DAVID H. GOLDBERG, individually and official capacities;
THE COUNTY OF LAKE, ILLINOIS, and THE STATE OF ILLINOIS;
MITCH MCKEE, official capacity;
MONICA JACKSON, individually and official capacities;
LARA DELKA, individually and official capacities; and
THE CITY & COUNTY OF DENVER, COLORADO, & THE STATE OF COLORADO,
Defendants.

ORDER DENYING MOTION FOR RECONSIDERATION

In Plaintiff Gilbert Tso’s (“Plaintiff”) latest iteration of litigation before this Court,
Plaintiff moves to set aside the March 5, 2018 Order Denying Pending Motions
(“Order”) (ECF No. 284) and the final judgment issued that same day (ECF No. 285)
(together, “Order & Judgment”). (ECF No. 295.) While Plaintiff focuses on the Order &
Judgment (ECF Nos. 284 & 285), he also seemingly seeks relief from “all orders”

entered by former U.S. Magistrate Judge Shaffer and the undersigned. (ECF No. 295
at 10.) Plaintiff’s “Verified Motion for Relief from Orders, Final Order and Judgment”
(the “Motion”) contends that Judge Shaffer’s spouse had a “consulting and advisory
services whose clientele include[d] the City [&] County of Denver,” and thus a financial
interest which should have prevented Judge Shaffer from presiding in this case. (Id. at
9.) Plaintiff also erroneously contends that the undersigned’s “impartiality for the
entirety of the above named action . . . may be reasonably questioned” because the
lawsuit originally named Denver Human Services (“DHS”) as a defendant “implicating
Denver DHS’[s] executive director Don Mares, who is related to Judge Martinez and, for
whom Judge Martinez sua sponte recused himself” in a separate case. (Id. at 2.)
Plaintiff has not met the Rule 60 standard for relief from a judgment or order.
Moreover, several of Plaintiff’s factual contentions, and the assumptions drawn
therefrom, are plainly erroneous. For those reasons, as further explained below, the
Court denies the Motion.
I. BACKGROUND
This case has a lengthy procedural history, with which the Court presumes
general familiarity. The Tenth Circuit recently set forth a summary of the factual
background of this case when it affirmed this Court’s denial of various motions and
dismissal of Plaintiff’s claims. See Tso v. Murray, 2019 WL 140992, at *1 (10th Cir.
Jan. 9, 2019). In brief, this lawsuit arises from Plaintiff’s “dissatisfaction with the childsupport obligation established in his Illinois divorce from his ex-wife.” Id. Plaintiff
brought claims against his ex-wife, her relatives, her Colorado and Illinois legal counsel,

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a court-appointed psychologist, and various Colorado and Denver governmental
entities, including—as relevant to the instant Motion—the City & County of Denver and
DHS. Id.
Plaintiff filed his Second Amended Complaint (ECF No. 120) on June 9, 2017.
On September 26, 2017, Judge Shaffer recommended dismissing Plaintiff’s Second
Amended Complaint (the “Recommendation”). (ECF No. 237.) On February 28, 2018,
this Court adopted the Recommendation over Plaintiff’s objection, granted Defendants’
various motions to dismiss, and denied as futile Plaintiff’s request for leave to
supplement the complaint (“Order Adopting Recommendation”). (ECF No. 282.)
The Court subsequently entered the Order, in which it denied Plaintiff’s motion
for leave to amend and motion to consolidate with Tso v. Murray, No. 17-cv-2523 (D.
Colo., filed Oct. 20, 2017) pending before Judge Philip A. Brimmer of this District, and
directed entry of a final judgment. (ECF Nos. 284 & 285.) The Tenth Circuit affirmed
this Court’s Order Adopting Recommendation and Order & Judgment. (ECF No. 306.)
II. LEGAL STANDARD
A motion for relief from a judgment under Rule 60(b) is addressed to the sound
discretion of the trial court. Zimmerman v. Quinn, 744 F.2d 81, 82 (10th Cir. 1984); see
also LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1475 (10th Cir. 1983) (decision
whether relief should be granted under Rule 60(b) is discretionary and should not be
disturbed except for a manifest abuse of discretion). Morever, the Court is “mindful that
Rule 60(b) ‘relief is extraordinary and may only be granted in exceptional
circumstances.’” Beugler v. Burlington Northern & Santa Fe Ry. Co., 490 F.3d 1224,

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1229 (10th Cir. 2007) (citing Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir.
2000)). Reconsideration under Rule 60(b) is not a tool to rehash prev iously-presented
arguments already considered and rejected by the Court, nor is it a vehicle by which to
present new arguments based upon law or facts that existed at the time of the original
argument. FDIC v. United Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998); Van
Skiver v. United States, 952 F.2d 1241, 1243–44 (10th Cir. 1991).
Rule 60(b)(6) provides for relief from a judgment when there is “any other reason
that justifies relief.” While relief under the five enumerated clauses of Rule 60(b)(1)–(5)
is “extraordinary and may only be granted in exceptional circumstances,” “Rule 60(b)(6)
relief is even more difficult to attain and is appropriate only when it offends justice to
deny such relief.” Yapp v. Excel Corp., 186 F.3d 1222, 1231–32 (10th Cir. 1999).
Plaintiff proceeds pro se, and the Court must liberally construe his pleadings.
Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However, the Court cannot act as
advocate for a pro se litigant, who must comply with the requirements of the Federal
Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III. ANALYSIS
Plaintiff argues that, due to supposed conflicts of interest which undermine the
impartiality of Judge Shaffer and the undersigned, the orders entered in this case are
void or should be vacated in the interest of justice. (ECF No. 295 at 2, 10.) See Fed.
R. Civ. P. 60(b)(4), (6). Plaintiff is factually and legally incorrect.
A.

The Motion is Untimely
A motion for reconsideration under Rule 60(b) must be made within a

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“reasonable time.” Fed. R. Civ. P. 60(c). There must be a “sufficient justification for
delay . . . taking into consideration the interest of finality, the reason for delay, the
practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to
other parties.” Saggiani v. Strong, 718 F. App’x 706, 710 (10th Cir. 2018) (citations
omitted).
Plaintiff learned of the facts on which his Motion is based long before he filed the
Motion. Plaintiff was aware of Judge Shaffer’s supposed conflict in December 2016, a
year-and-a-half before his motion. Plaintiff learned of the undersigned’s recusal in
another matter due to a friendship with a named party in the other matter (the Executive
Director of DHS) six months before the instant Motion. Despite this knowledge, Plaintiff
did not file a motion for recusal or otherwise suggest that either judge should be
recused until June 21, 2018. Plaintiff does not attempt to justify why he is seeking
recusal and reconsideration at this stage of the litigation, or even address the gap
between discovery of the purported basis for recusal and moving for recusal and
reconsideration. Because Plaintiff knew of the grounds relied upon well in advance of
the motion and has not attempted to justify the delay, the Court finds that the interest of
finality and potential prejudice to the non-moving parties far outweigh Plaintiff’s untimely
argument for reconsideration. See Saggiani, 718 F. App’x at 710. On this ground
alone, the Court could deny Plaintiff’s Motion.
B.

No Substantive Grounds for Recusal and Reconsideration
Neither Judge Shaffer nor the undersigned had a conflict of interest justifying

recusal in this matter, and therefore, there is no basis to reconsider any orders entered.
A judge must disqualify himself “in any proceeding in which his impartiality might
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reasonably be questioned” or “where he has a personal bias or prejudice concerning a
party.” 28 U.S.C. § 455(a) & (b)(1). In addition, a judge should disqualify himself or
herself if the judge’s spouse “has a financial interest in the subject matter in controversy
or in a party to the proceeding, or any other interest that could be substantially affected
by the outcome.” Id. § 455(b)(4) & (b)(5)(iii). Recusal is required when “a reasonable
person, knowing all the facts, would harbor doubts about the judge’s impartiality.”
Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir. 2002).
“The trial judge must recuse himself when there is the appearance of bias, regardless
of whether there is actual bias.” Id. (citing Nichols v. Alley, 71 F.3d 347, 350 (10th Cir.
1995)). However, adverse rulings, solely due to their adverse nature, are not a basis
for disqualification. Estate of Bishop v. Equinox Int’l Corp., 256 F.3d 1050, 1058 (10th
Cir. 2001).
“The recusal statute should not be construed so broadly as to become
presumptive or to require recusal based on unsubstantiated suggestions of personal
bias or prejudice.” Bryce, 289 F.3d at 659–60. The purpose of the statute is not to
provide litigants with “a veto power over sitting judges, or a vehicle for obtaining a judge
of their choice.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). Moreover,
“a judge has a strong duty to sit when there is no legitimate reason to recuse.” Bryce,
289 F.3d at 659.
1.

Judge Shaffer

Plaintiff fails to present facts to support his argument that Judge Shaffer had a
conflict of interest or that his impartiality might reasonably be questioned. During a

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December 2, 2016 status conference, Judge Shaffer “advised parties of a potential
conflict with [the] City of Denver Attorney’s Office.” (ECF No. 63 at 1.) “No one raise[d]
any questions for the court” at that time. Id. Nor does Plaintiff suggest he raised
concerns about a potential conflict at that time. Plaintiff now alleges that Judge Shaffer
had an actual conflict of interest because Judge Shaffer’s spouse provided consulting
services to the City & County of Denver. (ECF No. 295 at 6–7.) Specifically, Plaintiff
presumes that Judge Shaffer’s spouse had a fee-based advisory service and thus
hypothesizes a financial interest in the City & County of Denver. (Id. at 9.) Plaintiff
further contends that Judge Shaffer’s subsequent rulings against him “reinforced
Plaintiff’s presumption [that] Judge Shaffer lacks impartiality.” (Id. at 10.)
Plaintiff has not presented any facts beyond his own speculation that Judge
Shaffer’s spouse had a financial interest in the City & County of Denver. Instead,
Plaintiff merely assumes that Judge Shaffer’s spouse’s consulting business was an ongoing, fee-based advisory service, and, on that assumption, posits a financial interest in
the City & County of Denver. “[R]umor, speculation, beliefs, conclusions, or other nonfactual matters” are not adequate bases for recusal. See Estate of Bishop, 256 F.3d
1050, 1058 (10th Cir. 2001). Plaintiff has failed to present factual matter and
reasonable inferences drawn therefrom as to Judge Shaffer’s supposed conflict.
Moreover, Plaintiff attempts to bolster his conclusion on Judge Shaffer’s lack of
impartiality by pointing to Judge Shaffer’s adverse rulings. These adverse rulings,
adopted by the undersigned and affirmed by the Tenth Circuit, cannot alone support
disqualification. See Estate of Bishop, 256 F.3d at 1058. On the facts presented, no

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reasonable person would harbor doubt as to Judge Shaffer’s impartiality in this matter.
See Bryce, 289 F.3d at 659.
2.

The Undersigned

The undersigned also has no basis for recusal in the instant action. Plaintiff
contends that the undersigned’s friendship with the Executive Director of DHS is
disqualifying, even though the Executive Director is not a party to the instant action. 1
As support, Plaintiff cites the undersigned’s recusal in an action pending before Judge
Brimmer in which the Executive Director was named as a defendant in his professional
capacity. In that action, the undersigned recused himself because, based on his
friendship with the Executive Director, “he would not be able to be fair and impartial to
the Plaintiff.” Tso v. Murray, No. 17-cv-2523 (D. Colo., filed Jan. 12, 2018), ECF
No. 16.
However, in the instant action, Plaintiff merely named DHS, not the Executive
Director. The undersigned has no relationship of any kind with DHS, nor has Plaintiff
alleged any relationship beyond the undersigned’s friendship with the Executive
Director who, again, is not a party to this action. See Cheney v. U.S. Dist. Court for
D.C., 541 U.S. 913, 916 (2004) (“[Friendship] has traditionally not been a ground for
recusal where official action is at issue, no matter how important the official action was
to the ambitions or the reputation of the Government officer.”). Plaintiff has not
presented sufficient facts to meet his burden to show that recusal is required. Enlow v.
Covidien LP, 2013 WL 3974714, at *2 (D. Colo. Aug. 1, 2013). The undersigned has

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Plaintiff also wrongly suggests that the undersigned and the Executive Director are
related. While the two have an abiding 15-year friendship, they are not biologically related.

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no personal bias or prejudice toward DHS or any other named party in the litigation, and
his impartiality regarding the agency cannot reasonably be questioned. 28 U.S.C. §
455(a) & (b)(1). As such, the undersigned has no basis to recuse himself from the
instant action or revisit prior orders.
*

*

*

Because neither Judge Shaffer nor the undersigned were conflicted from
adjudicating this matter, the Recommendation, Order Adopting the Recommendation,
the Order & Judgment, and any other order entered by Judge Shaffer or the
undersigned are not void or otherwise invalid. Plaintiff does not present any other
reason to justify reconsideration. Plaintiff has therefore failed to assert any reason for
relief from judgment under Rule 60 and the Court thus denies Plaintif f’s Motion for
reconsideration.
IV. CONCLUSION
The Court finds that Plaintiff has failed to satisfy any subsection of Rule 60(b),
and has therefore failed to meet his high burden of showing that he is entitled to relief
from judgment under that Rule. For the reasons set forth above, Plaintiff’s Motion (ECF
No. 295) is DENIED.
Dated this 20th day of February, 2019.
BY THE COURT:

William J. Martínez
United States District Judge
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