Cowgill v. United States

Filing 31

ORDER by Magistrate Judge William P. Lynch denying 24 Motion to Alter Judgment; denying 25 Motion for Extension of Time to File Response/Reply. See Order for details. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHN HULBERT COWGILL, grantor
and beneficiary John Hulbert Cowgill, on
behalf of my Private Foreign Trust,
Plaintiff,
v.

CV 16-464 WPL/SCY

UNITED STATES OF AMERICA,
Defendant.

ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
On September 15, 2016, I entered an Order granting the United States’s motion to
dismiss for lack of subject matter jurisdiction (Doc. 22) and entered a Judgment dismissing the
case without prejudice (Doc. 23). On October 17, 2016, Plaintiff John Hulbert Cowgill filed a
motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e). (Doc. 24.) On
October 20, 2016, Cowgill filed a motion to extend time under to file his motion to amend
judgment, pursuant to Rule 6(b)(1)(B). (Doc. 25.) Because the 28-day time limit in which to file
a motion under Rule 59 is mandatory, and because Rule 6 specifically prohibits the district court
from granting an extension of time to file a motion pursuant to Rule 59, I have considered
Cowgill’s motion to be a Rule 60(b) motion. Under either Rule, I deny Cowgill’s motions.
Because Cowgill is a pro se litigant, I must construe his pleadings liberally and hold them
to a less stringent standard than is required of a party represented by counsel. See Weinbaum v.
City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for a pro se

litigant’s “failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at
1110) (alterations omitted). However, “the court cannot take on the responsibility of serving as
the litigant’s attorney in constructing arguments and searching the record.” Id.
Federal Rule of Civil Procedure 59(e) allows a litigant to file a “motion to alter or amend
a judgment . . . no later than 28 days after the entry of the judgment.” I filed the Judgment in this
case on September 15, 2016. Twenty-eight days from that date was October 13, 2016. Rule 6,
which governs “Computing and Extending Time; Time for Motion Papers,” allows parties to
move for an extension of time when “an act may or must be done within a specified time,” and
allows the court to extend that time for good cause. However, Rule 6(b)(2) specifically states that
“[a] court must not extend the time to act under Rule[] . . . 59(e) . . . .” Additionally, the Tenth
Circuit has repeatedly held that district courts lack the authority, under the Federal Rules of Civil
Procedure, to extend the time to file a motion under Rule 59(e). See Allender v. Raytheon
Aircraft Co., 439 F.3d 1236, 1241 (10th Cir. 2006); Weitz v. Lovelace Health Sys., Inc., 214 F.3d
1175, 1179 (10th Cir. 2000); Collard v. United States, 10 F.3d 718, 719 (10th Cir. 1993).
Accordingly, Cowgill’s motion to extend time under Rule 6 (Doc. 25) is denied.
When a motion purportedly filed under Rule 59(e) is deemed untimely, courts generally
convert the motion into a Rule 60(b) motion. Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir.
2005). I conclude that Cowgill’s motion was filed after the 28-day period and that I am
prohibited from extending the time in which to file a motion under Rule 59(e), and therefore
construe this as a Rule 60(b) motion.

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Relief pursuant to Rule 60(b) “is extraordinary and may only be granted in exceptional
circumstances.” Allender, 439 F.3d at 1242 (quoting Cashner v. Freedom Stores, Inc., 98 F.3d
572, 576 (10th Cir. 1996)). The Rule allows courts to, “[o]n motion and just terms, . . . relieve a
party or its legal representative from a final judgment, order, or proceeding” for the following
reasons:
(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). Exceptional circumstances may be demonstrated by satisfying at least one
of Rule 60(b)’s grounds for relief. Van Skiver v. United States, 952 F.2d 1241, 1243-44 (10th
Cir. 1991).
Cowgill’s motion is confusing. It appears that he seeks reconsideration based on his
mistake in failing to include the “Trust Indenture” as evidence when filing the complaint in this
case. (See Doc. 24 at 1.) Additionally, Cowgill “move[s] the Court to notice the fact that the
Private Foreign Trust Indenture is a ‘legally operative’ document.” (Doc. 24 at 2 (emphasis in
original).) Cowgill cites no basis or authority for this request and the request is denied.
Cowgill’s only potential argument is that this “Trust Indenture” unilaterally states that the
United States has waived immunity from suit. (Doc. 24 at 2.) Only Congress has the authority to
waive sovereign immunity, and then only when it “unequivocally expresse[s]” that intention.
United States v. Nordic Village Inc., 503 U.S. 30, 33 (1992). Cowgill’s unilateral expression that
the United States has waived sovereign immunity is without legal effect.

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Cowgill does not address nor could he reasonably argue, under any construction, that this
alleged mistake on his part qualifies as one of the six bases for relief pursuant to Rule 60(b).
Cowgill has not presented, and cannot present, any document, theory, or argument that would
resolve the subject-matter jurisdiction issue in this case or give rise to good cause for
reconsideration. As stated in the original Order, “[t]he United States, as sovereign, is immune
from suit save as it consents to be sued. . . .” (Doc. 22 at 6 (quoting Lindstrom v. United States,
510 F.3d 1191, 1193 (10th Cir. 2007)).) “Courts lack subject matter jurisdiction over a claim
against the United States for which sovereign immunity has not been waived.” (Id. at 6-7
(quoting Iowa Tribe of Kan. & Neb. v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010)).)
Under Rule 60(b) as well, Cowgill’s motion is without merit and is denied.
IT IS SO ORDERED.
___________________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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