Ross et al v. Balderas et al

Filing 306

ORDER by Circuit Judge Paul Kelly, Jr. denying 297 Plaintiff Ross's Motion for Further Reconsideration of Attorney's Fees. (rt)

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

ANDREW ROSS and SUSAN GERARD,
Plaintiffs,
No.

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.

1:16-cv-01121 PJK/SMV

ANDREW ROSS and SUSAN GERARD,
Counter-Defendants.

ORDER ON RULE 60(B)(1) MOTION
FOR FURTHER RECONSIDERATION OF ATTORNEY’S FEES

THIS MATTER comes on for consideration of Plaintiff Andrew Ross’s Rule
60(b)(1) Motion for Further Reconsideration of Attorney’s Fees Granted by this Court to
Robert Richards and Hector Balderas Pursuant to FRCP 60.(b)(1), filed December 4,
2017. Doc. 297. Upon consideration thereof, the Motion is not well taken and should be
denied.
A first amended final judgment awarding attorney’s fees was entered on October
2, 2017. Doc. 269. Mr. Ross did not appeal from that judgment, nor the initial judgment
awarding attorney’s fees. Doc. 252. Rule 60(b)(1) allows a court to relieve a party from
a final judgment on the basis of “mistake, inadvertence, surprise, or excusable neglect.”
Fed. R. Civ. P. 60(b)(1). This is Mr. Ross’s third motion seeking post-judgment relief.
See Docs. 261, 285 (first and second motions). The first motion attributed the judgment
to the fault of his attorney; the second to Defendants Richards and Wall. A Rule 60(b)
motion is not a substitute for an appeal. Bud Brooks Trucking, Inc. v. Bill Hodges
Trucking Co., Inc., 909 F.2d 1437, 1440 (10th Cir. 1990). And no explanation appears as
to why Mr. Ross did not raise his current arguments in his earlier motions.

-2-

Be that as it may, Mr. Ross contends that he was not a party to any of the claims
involved seeking relief against Defendants Richards and Balderas. That statement is
belied by the amended complaint which contains allegations by Plaintiff Ross against
Defendants Richards and Balderas. See, e.g., Doc. 8 at 1; id. at 58, ¶ 235; id. at 59, ¶¶
238–243; id. at 60, ¶ 248; id. at 61, ¶ 252; id. at 74, ¶¶ 364–365. The court has previously
determined that Mr. Ross “was complicit and culpable” in these proceedings in the
context of denying a prior motion. Doc. 270 at 3.
Mr. Ross also contends that the award of attorney’s fees would constitute an illegal
taking under the Fourth Amendment. He cites no authority for this proposition, and the
court rejects it.
In his response (Doc. 301), Defendant Richards again urges the court to place
Plaintiff Ross under filing restrictions and order that Mr. Ross undergo a
neuropsychological evaluation, which could lead to a commitment proceeding or
appointment of a guardian ad litem. Defendant Richards again seeks attorney’s fees and
costs subsequent to the order granting him fees. The court declines to grant such relief
but admonishes Mr. Ross that future frivolous pleadings (such as this one, in which he
again attempts to evade responsibility for frivolous filings) may result in sanctions.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that
Plaintiff Andrew Ross’s Rule 60(b)(1) Motion for Further Reconsideration of Attorney’s
Fees Granted by this Court to Robert Richards and Hector Balderas Pursuant to FRCP
60.(b)(1), filed December 4, 2017 (Doc. 297) is denied.
-3-

DATED this 4th day of January 2018, at Santa Fe, New Mexico.
/s/ Paul Kelly, Jr.
United States Circuit Judge
Sitting by Designation

-4-