Ross et al v. Balderas et al

Filing 216

ORDER by Circuit Judge Paul Kelly, Jr denying 196 Motion for Reconsideration; denying 210 Motion for Hearing. (rt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

ANDREW ROSS and SUSAN GERARD,
Plaintiffs,
vs.
HECTOR BALDERAS, JR., ROBERT
GARCIA, SARAH MICHAEL
SINGLETON, FRANCIS J. MATHEW,
RAYMOND Z. ORTIZ, DAVID K.
THOMPSON, JENNIFER ATTREP, T.
GLENN ELLINGTON, SYLVIA
LAMAR, DONITA OLYMPIA SENA,
DONNA BEVACQUA-YOUNG, PAT
CASADOS, FRANK SEDILLO,
WILLIAM PACHECO, ANTONIO
GUTIERREZ, ANNA MONTOYA,
JUDAH BEN MONTANO, A. ARROYO,
E. MONTIJO, MICHELLE PORTILLO,
STEPHEN T. PACHECO, JANE
GAGNE, JOYCE BUSTOS, LYNN
PICKARD, PAMELA REYNOLDS,
ROBIN MARTINEZ, ROBERT
RICHARDS, BRENDA WALL,
AUDREY MONTOYA, and ALLSTATE
INSURANCE, INC.,
Defendants.
-------------------------PAMELA REYNOLDS and ROBERT
RICHARDS,
Counter-Claimants,
vs.

No.

1:16-cv-01121 PJK/SMV

ANDREW ROSS and SUSAN GERARD,
Counter-Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR RELIEF FROM COURT ORDER
DENYING PLAINTIFFS’ AMENDED MOTION FOR LEAVE TO FILE SECOND
AMENDED COMPLAINT

THIS MATTER comes on for consideration of Plaintiff Andrew Ross’s “Rule
60(b) Motion for Relief From Court Order Denying Plaintiffs’ Amended Motion for
Leave to File Second Amended Complaint” filed May 5, 2017. Doc. 196. Upon
consideration thereof, the motion is not well taken and should be denied without a
hearing.
As a preliminary matter, the court determines that Plaintiff’s “Rule 60(b) Motion”
is more aptly a motion under Fed. R. Civ. P. 59(e). Although Rules 59(e) and 60(b) both
allow a litigant to challenge an adverse ruling, the rules are distinct and principally
depend on when the motion is served. Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). If a motion is served within the time period specified by Rule 59(e),
then the motion is construed as a Rule 59(e) motion, even if the motion is styled under
Rule 60(b). Campbell v. Bartlett, 975 F.2d 1569, 1580 n.15 (10th Cir. 1992). The time
period specified by Rule 59(e) is 28 days. Plaintiff’s May 5 motion (Doc. 196)
challenges an order this court filed on April 18 (Doc. 188). Because Plaintiff’s motion

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was filed 17 days after this court’s entry of judgment, the motion was filed within the
period specified by Rule 59(e) and will be construed as a motion made under Rule 59(e).1
A Rule 59(e) motion may be granted “to correct manifest errors of law or to
present newly discovered evidence,” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.
1997), or when “the court has misapprehended the facts, a party’s position, or the
controlling law,” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
However, a Rule 59(e) motion is not an opportunity to “revisit issues already addressed or
advance arguments that could have been raised in prior briefing.” Id.
Plaintiff raises several arguments in support of his motion for reconsideration. He
asserts counsel’s failure to file an appropriate motion is attributable to excusable neglect
based on counsel’s “unforeseen personal problems” concerning a disciplinary
investigation into counsel’s conduct in the instant litigation. Doc. 196, at 3–4. Plaintiff
also contends that this court erred in ruling on the first motion for leave when that motion
had been amended and in relying upon the dismissal of the first motion when dismissing
the ostensibly-amended motion at issue here. He further argues that the attempts to
amend the complaint did not add new theories or demonstrate an intent to create a moving
target to avoid dismissal, and that the interests of justice favor allowing the claims to
proceed.
These arguments, however, are unavailing. First, counsel’s engagement with other
matters does not rise to the level of excusable neglect. Cf. McLaughlin v. City of
1

This distinction, however, does not materially affect the disposition of this motion.
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LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981). Second, Plaintiff’s characterization that
the second motion for leave to file an amended complaint (Doc. 172) “amended”
Plaintiffs’ first motion (Doc. 149) is not accurate. Although it is true that the second
motion is titled “Plaintiff’s Amended Motion for Leave to File Second Amended
Complaint,” the pleading, as corroborated by the docket entry, is really a “Second Motion
to Amend/Correct the Amended Complaint.” Because the substance of the motion
addresses amending Plaintiffs’ complaint, not Plaintiffs’ prior motion, and the first
motion was never withdrawn, this court determined that the two motions were really two
distinct attempts to amend Plaintiffs’ amended complaint2 and proceeded accordingly —
working on a first-in, first-out basis. The court therefore finds that resolving each motion
and noting the resolution of the first when dismissing the second was not in error.
Moreover, this court identified untimeliness as an independent reason to deny Plaintiffs’
second motion, Doc. 188, at 4 — a rationale that Plaintiff does not appear to dispute.
Finally, Plaintiff’s remaining arguments essentially revisit issues previously considered
and dismissed by this court when the original motion was briefed and ruled upon and,
consequently, need not be addressed further. See Van Skiver, 952 F.2d at 1243. A
hearing on this motion is unnecessary. Although no Defendant responded (which

2

This determination, though not explicit in this court’s prior order, is readily implied
from this court’s explanation that the second motion was more aptly a motion for leave to
file a third amended complaint. See Doc. 188, at 2; see also id. at 3 (characterizing the
second motion as one “for leave to file [Plaintiffs’] third amended complaint”).
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constitutes consent to grant the motion, D.N.M. LR-Civ. 7.1(b)), there is no legal basis
for granting this motion.
NOW, THEREFORE, IT IS ORDERED that:
(1) Plaintiff’s Rule 60(b) Motion for Relief From Court Order Denying Plaintiffs’
Amended Motion for Leave to File Second Amended Complaint filed May 5, 2017 (Doc.
196) is denied, and
(2) Plaintiff’s Request for Hearing on Plaintiff’s Rule 60(b) Motion for Relief
From Court Order Denying Plaintiffs’ Amended Motion for Leave to File Second
Amended Complaint filed May 21, 2017 (Doc. 210) is denied.
DATED this 25th day of May 2017, at Santa Fe, New Mexico.
_______________________
United States Circuit Judge
Sitting by Designation

Counsel:
Arash “Asher” Kashanian, Albuquerque, New Mexico, for Plaintiffs.

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