Muller v. Vilsack et al
MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo denying 277 Motion for Reconsideration and 278 Motion for Reconsideration (cab)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 13-cv-431 MCA-KK
TOM VILSACK, Secretary, et al.,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff’s Motion to Partially Reconsider
Memorandum Opinion and Order (Doc. 272) [Doc. 277] and Plaintiff’s Motion to
Partially Reconsider Memorandum Opinion and Order (Doc. 271) [Doc. 278]. The
Court, having considered the parties’ submissions, the relevant law, and being otherwise
fully advised in the premises, hereby DENIES both Motions.
As previously set forth in numerous orders in this case [see, e.g., Doc. 271 p. 4],
the Court liberally construes Plaintiff’s pro se pleadings.
Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); McBride v. Deer, 240 F.3d 1287,
1290 (10th Cir. 2001).
The Federal Rules of Civil Procedure do not expressly recognize a motion for
reconsideration. In re Thornburg Mortg., Inc. Sec. Litig., 824 F. Supp. 2d 1214, 1240
(D.N.M. 2011), aff’d sub nom. Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190 (10th
Cir. 2013). When a party seeks reconsideration of a non-final order, the motion is
considered “an interlocutory motion invoking the district court’s general discretionary
authority to review and revise interlocutory rulings prior to entry of final judgment.”
Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991). Although a district
court has “considerable discretion” to revisit its prior decisions, see Thornburg Mortgage,
824 F. Supp. 2d at 1240, “as a rule [a court] should be loathe to do so in the absence of
extraordinary circumstances such as where the initial decision was clearly erroneous and
would work a manifest injustice,” Christianson v. Colt Indus. Operating Corp., 486 U.S.
800, 817 (1988) (citation and internal quotation marks omitted).
A motion for
reconsideration is an “inappropriate vehicle to reargue an issue previously addressed by
the court when the motion merely advances new arguments or supporting facts which
were available at the time of the original motion.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000); Otero v. Nat’l Distrib. Co., 627 F. Supp. 2d 1232,
1237 (D.N.M. 2009). Rather, appropriate “[g]rounds 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.”
Paraclete, 204 F.3d at 1012 (citation omitted).
Plaintiff’s Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 272)
In the Court’s Memorandum Opinion and Order [Doc. 272] at issue in this Motion
[Doc. 277], the Court denied leave to Plaintiff to file his Proposed Third Amended
Complaint on the following grounds:
1) the futility of the proposed amendments; 2) Plaintiff knew of the facts
upon which the proposed amendment is predicated before filing his suit in
2013 but has failed to include the allegations or claims within any prior
version of the complaint, despite three opportunities to do so; 3) the
unreasonable delay given Plaintiff’s knowledge of the facts and prior
amendments to his complaint; and 4) Plaintiff’s motivation, in part, is to
revive a claim dismissed in a previous order of the Court.
[Doc. 272, pp. 6-7] In the present Motion to Reconsider [Doc. 277], Plaintiff repeats his
argument that he did not include particular allegations in his earlier complaint “in the best
interest of judicial economy” [Doc. 277, pp. 2-3], and, moreover, argues that the issues
that he raises in his Proposed Third Amended Complaint are issues of significant public
concern, citing Deutsch v. Jordan, 618 F.3d 1093, 1100 (10th Cir. 2010) (defining
matters of public concern in cases concerning the First Amendment rights of public
employees). First, the requirements of notice pleading will always take priority over
judicial economy, requiring every plaintiff to adequately state his or her claim. Second,
neither of Plaintiff’s arguments are persuasive or overcome the futility of the proposed
Thus, Plaintiff’s Motion to Partially Reconsider Memorandum Opinion
and Order (Doc. 272) [Doc. 277] is DENIED.
Plaintiff’s Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 271)
In the Court’s Memorandum Opinion and Order [Doc. 271] at issue in this Motion
[Doc. 288], the Court granted State Defendants’ Motion to Dismiss as to Defendants
Manzanares, Fly, and Hanosh for insufficient service. [Doc. 271, pp. 8, 17] The Court
further considered whether to grant an extension to Plaintiff to attempt to serve the three
unserved State Defendants, and declined to do so. The Court explained at length its
reasons for denying an extension:
1) Plaintiff did not attempt to effect service until approximately one week
before his deadline to do so; 2) Plaintiff only attempted service after the
Magistrate Judge entered an Order to Show Cause directing Plaintiff to
show cause why his complaint should not be dismissed for failing to
advance his case; 3) Plaintiff did not explain any circumstance preventing
him from attempting service earlier; 4) Plaintiff’s unexplained delay was
the cause of his inability to attempt to follow the secondary and tertiary
methods of service set forth in New Mexico Rule of Civil Procedure 1004(F); and 5) Plaintiff previously brought the same claim against the State
Defendants, which Plaintiff dismissed voluntarily, without prejudice, after
the Court entered an Order to Show Cause why the Complaint should not
be dismissed for the failure to effect service within the 120 [day] deadline.
Muller v. Vilsack, et al., 12-CV-1136-RB-LFG [Doc. 1, ¶¶ 43-52; Doc. 5;
Doc. 8]. Between these two lawsuits, Plaintiff has been afforded 240 days
to serve the State Defendants, and rather than diligently making efforts to
do so, he sat on his rights. Furthermore, nowhere in his Motion to Extend
the Time for Services of Process does Plaintiff identify the actions he would
take to effect service upon these Defendants or a timeline for service. [Doc.
46] Thus, the Court, exercising its discretion based on the totality of the
circumstances, declines to afford Plaintiff a permissive extension of the
time to serve Dr. Hanosh, Dr. Fly and Mr. Manzanares.
[Doc. 271, pp. 11-12]
In his Motion to Reconsider, Plaintiff argues that the Court must reconsider its
Order to prevent the manifest injustice of declining to address Plaintiff’s asserted
“matters of public concern.” [Doc. 278, pp. 1-2] Plaintiff further reiterates that the three
unserved Defendants “attempted to conceal themselves for sole purpose to avoid service
of process by not signing envelopes containing the summons and a complaint.” [Doc.
278, p. 3] In addition, in Plaintiff’s Reply, he argues that the Court’s dismissal of the
three unserved State Defendants is plain error, that the Court must comply with 28 U.S.C.
§ 535(b) (requiring certain executive branch personnel to report information involving
violations of federal criminal law involving government employees to the Attorney
General), and that, again, the Court must address his claims alleging criminal conduct
which he asserts are matters of public concern, citing Garritty v. Overland Sheepskin Co.
of Taos, 1996-NMSC-032, ¶ 17, 917 P.2d 1382 (recognizing that whistleblower claims
exist because there is a “strong public policy against condoning criminal activity and in
favor of uncovering and eradicating it”).
[Doc. 293, pp. 3-4]
He also cites a
Memorandum Opinion and Order issued by this Court in an earlier case, Rush v. City of
Clovis, 11-CV-810-MCA-GBW [Doc. 17] (D.N.M. Feb. 3, 2012), in which the Court
determined that service of process was insufficient, but the Court quashed the insufficient
service and allowed the Plaintiff addition time to effect proper service. Plaintiff argues
that the facts of his case are similar to those in Rush and that Plaintiff was not allowed
additional time to serve the Defendants, thus “raising an appearance of racially-motivated
prejudice against Plaintiff because of his advocacy on behalf of Native Americans.”
[Doc. 293, p. 5]
Plaintiff’s arguments do not identify any manifest injustice, and thus, the Court
declines to reconsider its prior ruling. First, Plaintiff cites and relies on case law which
and statutes which are inapplicable and which do not support his arguments. Plaintiff has
not brought a whistleblower claim (as at issue in Garritty)—instead he has filed a more
specific and limited claims under the New Mexico Human Rights Act and Title VII.
Further, plain error, a standard of review of rulings in criminal cases, is inapplicable here,
as is 28 U.S.C. § 535(b) and the remaining authority cited by Plaintiff.
significantly factually distinguishable from the case at hand given Plaintiff’s lack of
diligence in attempting to serve State Defendants, as recited above. Compare Rush, 11CV-810-MCA-GBW [Doc. 17, pp 1-2] (plaintiff attempted to serve the defendants
approximately five weeks after filing the complaint). Accordingly, the Court’s exercise
of its discretion in this case to not allow any further time for Plaintiff to attempt to serve
the unserved State Defendants was well warranted. See Pell v. Azar Nut Co., 711 F.2d
949, 951 n.2 (10th Cir. 1983) (noting that, though generally a court should quash
insufficient service and allow an opportunity to re-serve where the insufficient service is
curable, the Court “retains broad discretion to dismiss the action if it appears unlikely that
proper service can or will be instituted”). Finally, this Court has dutifully issued its
rulings based on sound legal authority, and the Court will continue to do so.
Thus, for the foregoing reasons, Plaintiff’s Motion to Partially Reconsider
Memorandum Opinion and Order is DENIED.
WHEREFORE, for the foregoing reasons, the Court hereby DENIES Plaintiff’s
Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 272) [Doc. 277]
and the Court further herby DENIES Plaintiff’s Motion to Partially Reconsider
Memorandum Opinion and Order (Doc. 271) [Doc. 278].
SO ORDERED this 22nd day of September, 2017 in Albuquerque, New Mexico.
M. CHRISTINA ARMIJO
Chief United States District Judge
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