Greene et al v. Cottonwood Mall et al
Filing
120
MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen denying 112 Plaintiffs' Amended Motion to Reconsider and Amend Judgment. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANWAR GREENE and LEE GIBSON,
Plaintiffs,
v.
CIV 16-0222 KBM/SCY
SIMON PROPERTY GROUP, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ AMENDED MOTION TO RECONSIDER
THIS MATTER comes before the Court on Plaintiffs’ Amended Motion to
Reconsider and Amend Judgment (Doc. 112), filed November 1, 2018. Having reviewed
the parties’ briefs and submissions, the Court finds that the motion lacks merit.
As the Tenth Circuit has noted,
[t]he Federal Rules of Civil Procedure do not recognize a “motion to
reconsider.” Instead, the rules allow a litigant subject to an adverse
judgment to 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). These two rules are distinct; they serve different
purposes and produce different consequences. Which rule applies to a
motion depends essentially on the time a motion is served.
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Motions filed within
a 28-day window after entry of judgment are considered requests to alter or amend
pursuant to Rule 59(e). Such a Rule 59(e) “motion for reconsideration is appropriate
where the court has misapprehended the facts, a party’s position, or the controlling law.”
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). On the other
hand, motions filed after Rule 59(e)’s 28-day deadline are deemed motions bought
pursuant to Rule 60(b). That rule identifies six grounds for relief:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable; or (6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
In the instant case, the Court entered summary judgment for Defendant and
dismissed this action in its entirety on September 29, 2018. Doc. 108. Plaintiffs then
filed their original Motion to Reconsider and Amend Judgment (Doc. 110) on October
27, 2018, which would be within the 28-day window for filing a motion to alter or amend
pursuant to Rule 59(e). Evidently the original motion violated several of our District’s
local rules, and this Amended Motion was filed on November 1, 2018 – after the
deadline set forth in Rule 59(e) – to bring the motion into technical compliance with
those local rules. Doc. 114 at 2, n.1. For the reasons set forth below, whether analyzed
under the standards for relief under Rule 59(e) or Rule 60(b), Plaintiffs fail to meet their
burden to establish that they are entitled to relief.
In their Reply Brief, Plaintiffs contend that their current “motion clarifies certain
disputed facts about which there has been some misapprehension.” Doc. 112 at 2. Yet
this assertion ignores that Plaintiffs chose not to contest any of the material issues of
undisputed facts set forth by Defendant in its motion for summary judgment. Plaintiffs
now rely on purported “new” evidence without any showing that it was unavailable at the
time of my decision on the summary judgment motion. I therefore agree with Defendant
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that this is simply Plaintiffs’ “belated attempt to demonstrate material fact issues” using
affidavits, deposition testimony, and exhibits to which they had access when they
responded to the motion for summary judgment in April 2018. Doc. 114 at 3-4. The time
for presenting that evidence is long past. See Van Skiver, 952 F.2d at 1243
("[R]evisiting the issues already addressed is not the purpose of a motion to reconsider
and advancing new arguments or supporting facts which were otherwise available for
presentation when the original summary judgment motion was briefed is likewise
inappropriate."). Simply put, whether characterized as an attempted “do-over” or
“second bite at the apple,” Plaintiffs’ late effort is just that – too late.
Plaintiffs’ counsel repeats his position taken at oral arguments on the motion for
summary judgment that granting summary judgment results in “a manifestly unjust
outcome.” Doc. 116 at 1. But the entry of summary judgment “is not ‘a disfavored
procedural shortcut but rather [it is] an integral part of the Federal Rules as a whole,
which are designed to secure the just, speedy, and inexpensive determination of every
action.’” Garcia v. Vilsack, 628 F. Supp. 2d 1306, 1308-09 (D.N.M. 2009) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). And, as detailed in my September
29, 2018 Memorandum Opinion and Order, Plaintiffs were given ample opportunity to
come forth with evidence demonstrating disputed issues of material fact and failed to do
so. I also explained why Plaintiffs’ request for additional discovery under Rule 56(d) was
woefully deficient. See Doc. 107 at 5-7. In summary, on the record before the Court,
Defendant clearly established its entitlement to judgment as a matter of law, and this
Court sees no error in its decision nor justification to alter its final judgment.
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Insofar as Defendant requests the imposition of sanctions for the filing of this
motion to amend or alter, the Court declines to do so. Throughout this litigation,
Plaintiffs’ counsel has repeatedly misapprehended his obligations and the burdens that
are imposed by both the federal rules of procedure and our local district rules. It
appears that this lawsuit is his first as an attorney of record in federal district court in
New Mexico. Thus, the unnecessary delay and needless increase in costs of litigation of
which Defendant complains may well be due Mr. Ruiz de la Torre’s inexperience in
federal court rather than constitute vexatious conduct.
Finally, Plaintiffs’ counsel has often asserted that it is unfair for his clients to be
penalized for the missteps of their attorneys. The Supreme Court has explained that
even in cases involving the most severe sanctions,
[t]here is certainly no merit to the contention that dismissal of petitioner's
claim because of his counsel's unexcused conduct imposes an unjust
penalty on the client. Petitioner voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the consequences of
the acts or omissions of this freely selected agent. Any other notion would
be wholly inconsistent with our system of representative litigation, in which
each party is deemed bound by the acts of his lawyer-agent and is
considered to have “notice of all facts, notice of which can be charged upon
the attorney.”
Link v. Wabash R. Co., 370 U.S. 626, 633-34 (1962) (quotation omitted).
Wherefore,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiffs’
Amended Motion to Reconsider and Amend Judgment (Doc. 112), filed November 1,
2018 is denied.
_______________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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