Navarette v. Corizon LLC et al

Filing 29

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson denying 28 MOTION for Reconsideration of the May 14, 2019 Order Dismissing the Case Without Prejudice. (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ARNOLDO NAVARETTE,
Plaintiff,
v.

No. 18-cv-0057 WJ/SMV

CORIZON LLC, FNU WALDEN,
NORTHEASTERN NEW MEXICO
DETENTION FACILITY, and GEO GROUP,
Defendants.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO ALTER THE
MAY 14, 2019 JUDGMENT PURSUANT TO FED. R. CIV. P. 59(e)
THIS MATTER is before the Court on Plaintiff’s Motion to Alter the May 14, 2019
Judgment Pursuant to Fed. R. Civ. P. 59(e) [Doc. 28], filed on June 11, 2019. The Motion is not
well-taken and will be denied.
Background
Proceeding pro se, Plaintiff filed his original Complaint against Defendants on January 17,
2018. [Doc. 1] at 1. However, attorney Jason Montclare entered an appearance on behalf of
Plaintiff on August 14, 2018. [Doc. 17]. Shortly thereafter, on August 16, 2018, the magistrate
judge, the Honorable Stephan M. Vidmar, issued an Order to Amend Complaint and for Service
of Process. [Doc. 18]. Judge Vidmar found several deficiencies in the original pro se Complaint
and gave Plaintiff 30 days to file an amended pleading with the benefit of his counsel. Id. at 1.
Further, Judge Vidmar explicitly ordered Plaintiff to address the issue of service of process.
Id. at 2. He gave Plaintiff two options: one, serve Defendants himself, or two, request that the

Court effect service under 28 U.S.C. § 1915. Id. Judge Vidmar went on to specify that if Plaintiff
wanted the Court effect service, he would be required to make a request in writing and to provide
Defendants’ addresses at the time Plaintiff filed his amended complaint. Id.
Plaintiff’s counsel failed to timely respond to Judge Vidmar’s Order to Amend Complaint
and for Service of Process. The deadline was September 17, 2018, but Plaintiff’s counsel filed
nothing by that date. On September 18, however, one day late, Plaintiff’s counsel moved for an
extension of time (until October 17, 2018) to amend the Complaint. [Doc. 21]. The motion made
no mention of service on Defendants. Id. Judge Vidmar granted the extension, [Doc. 22], and on
October 17, 2018, Plaintiff filed his Amended Complaint, naming the same Defendants as were
identified in the original Complaint. Compare [Doc. 23] (Amended Complaint), with [Doc. 1]
(original Complaint). Plaintiff neither requested that the Court serve Defendants, nor provided
their addresses, nor mentioned service when he amended his Complaint. See [Doc. 23].
More than six moths passed, during which time Plaintiff took no action on the record. On
April 19, 2019, Judge Vidmar ordered Plaintiff to show cause no later than May 10, 2019, why the
action should not be dismissed without prejudice for lack of service. [Doc. 24]. May 10 came and
went, and Plaintiff failed to respond in any way. Accordingly, the Court dismissed the action
without prejudice on May 14, 2019. [Doc. 25]. Within hours, Plaintiff filed his Motion for Relief
from Order of Dismissal [Doc. 26] (“Rule 60(b) Motion”).
The Rule 60(b) Motion
Citing Rules 60(b)(1) and 60(b)(6) of the Federal Rules of Civil Procedure, Plaintiff asked
the Court for “relief from the Order of Dismissal,” including 14 days to effect service of process
Id. at 2. Plaintiff explained that Judge Vidmar’s Order to Show Cause “inadvertently did not come
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to the attention” of his counsel. Id. Next, counsel argued that “representation of . . . Plaintiff, and
identification of . . . Defendants, [wa]s made difficult by . . . Plaintiff’s acute mental illnesses and
incarceration.” Id. Finally, he argued that further time would allow the case to be decided on the
merits and would not prejudice Defendants. Id. On those bases—and none other—counsel urged
that his “neglect [should be deemed] excusable.” Id. The Motion was denied. [Doc. 27].
This case had been dismissed for lack of service, but Plaintiff offered no explanation as to
how the lack of service resulted from his counsel’s overlooking the Order to Show Cause. Counsel
explained why he failed to respond to the Order to Show Cause (he said it inadvertently did not
come to his attention), but not why he failed to serve Defendants. He explained that there was
difficulty in representation due to Plaintiff’s illnesses and incarceration. However, that did not
address why counsel failed to serve Defendants for more than six months after naming them in the
Amended Complaint in October of 2018. Although the Court prefers to resolve cases on the merits,
that factor is present in every case. Here, the Court found that Plaintiff had failed to overcome the
“high hurdle” faced by movants under Rule 60(b). Id. at 3 (citing Zurich N. Am. v. Matrix Serv.,
Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)). Plaintiff had failed to show the “exceptional
circumstances” required for relief under the Rule. Id. (citing Servants of the Paraclete v. Does,
204 F.3d 1005, 1009 (10th Cir. 2000) (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking
Co., 909 F.2d 1437, 1440 (10th Cir. 1990))). Accordingly, the Court denied Plaintiff’s Rule 60(b)
Motion. [Doc. 27].
The Rule 59(e) Motion
Now, Plaintiff is trying again to undo the judgment. [Doc. 28]. He raises the same
arguments he raised in his Rule 60(b) Motion, but this time, he relies on Rule 59. Id.
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A court may reconsider a final decision under Rule 59(e) if the moving party shows “(1) an
intervening change in the controlling law, (2) new evidence previously unavailable, [or] (3) the
need to correct clear error or prevent manifest injustice.” Servants of the Paraclete, 204 F.3d
at 1012. Rule 59(e) motions may be granted when “the court has misapprehended the facts, a
party’s position, or the controlling law.” Id. A Rule 59(e) motion is not intended to “allow a
losing party to rehash arguments previously addressed or to present new legal theories or facts that
could have been raised earlier.” ACE USA v. Union Pac. R.R. Co., No. 09-2194-KHV, 2011 U.S.
Dist. LEXIS 141228, 2011 WL 6097138, at *1 (D. Kan. Dec. 7, 2011) (unpublished). “A party’s
failure to present its strongest case in the first instance does not entitle it to a second chance in the
form of a motion to reconsider.” Id.
Here, Plaintiff’s counsel attempts to explain that he failed to serve Defendants “due in
substantial part to” Plaintiff’s mental condition and incarceration in a remote location. [Doc. 28]
at 2. He argues that the Court should not dismiss the case because the merits have not been reached.
Id. at 3–4. Additionally, Plaintiff argues that Defendants would not be prejudiced by granting the
relief requested. Id. at 4. These arguments were all raised previously in the Rule 60(b) Motion.
There is one new argument asserted in the Rule 59(e) motion. Plaintiff suggests that his
claims may potentially be barred by the statute of limitations, and thus, dismissal could work a
manifest injustice. In relevant part, he argues:
[D]ue to the passage of time, [this] dismissal could be dispositive
due to the statute of limitations. This being said, Mr. Navarette’s
confinement and mental challenges may ultimately serve to toll the
statute of limitations. However, since the May 14, 2019 Order is
potentially dispositive, Mr. Navarette must seek a reconsideration at
this stage. Otherwise, the merits of his claims may never be
reached[,] and a manifest injustice may occur.
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[Doc. 28] at 3.
None of the arguments raised in the instant Rule 59(e) motion merits relief. First, these
arguments either were or, in the instance of the statute-of-limitations argument, could have been
raised previously. Thus, they are improper grounds for relief. Relief under Rule 59(e) should be
denied on this ground alone. See Servants of the Paraclete, 204 F.3d at 1012; Nelson v. City of
Albuquerque, 921 F.3d 925, 929 (2019).
Alternatively, the reasons provided by counsel fail to show manifest injustice, which is the
sole Rule 59(e) ground on which Plaintiff relies.1 [Doc. 28] at 3–4. “Although the Tenth Circuit
has not specifically defined ‘manifest injustice’ in the Rule 59(e) context, other courts have defined
manifest injustice as ‘more than just a clear and certain prejudice to the moving party, but also a
result that is fundamentally unfair in light of governing law.’” Thymes v. Verizon Wireless, Inc.,
No. 16-cv-0066 KG/WPL, 2016 U.S. Dist. LEXIS 140345, 2016 WL 9777487, at *2 (D.N.M.
Sept. 28, 2016) (unpublished) (quoting Smith v. Lynch, 115 F. Supp. 3d 5, 12 (D.D.C. 2015); and
then citing In re Green Goblin, Inc., Bankr. No. 09-11239 ELF, 2012 WL 1971143, at *1 (Bankr.
E.D. Pa. May 31, 2012) (unpublished) (“In order for a court to reconsider a decision due to
‘manifest injustice,’ the record presented must be so patently unfair and tainted that the error is
manifestly clear to all who view it.”)).
Specifically, counsel still fails to explain why Plaintiff’s mental conditions and/or remote
location hindered counsel’s efforts to serve Defendants. See [Doc. 28] at 2. After all, Defendants
had been named in the Amended Complaint, which was filed in October of 2018. Counsel fails to

1

The Rule 59(e) Motion fails to establish that relief is proper under any ground.

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explain why his client’s limitations posed any hindrance to counsel’s ability to effect service of
process. These circumstances do not amount to manifest injustice.
Even though the merits were not reached, and even if Defendants would not be prejudiced
by granting Plaintiff relief (which the Court does not necessarily find), Plaintiff still fails to show
that dismissal without prejudice amounts to manifest injustice.
As to the only “new” reason (alleged for the first time in the instant Rule 59(e) Motion),
id. at 3–4, the Court is not persuaded. Plaintiff suggests that without relief from the Judgment in
this case, his claims may potentially be barred by the statute of limitations. Id. It is important to
appreciate that Plaintiff does not allege that he cannot bring another lawsuit due to the statute of
limitations; he does not make that allegation. See id. Rather, he suggests that maybe, perhaps, a
new lawsuit could potentially be barred. Plaintiff gives no dates, no time lines, and no frame of
reference for his equivocal suggestion that his claims may potentially be barred by the statute of
limitations. See id. Plaintiff fails to show that the potential for a limitations bar constitutes a
manifest injustice. See Mouzon v. Radiancy, Inc., 309 F.R.D. 60, 64–65 (D.D.C. 2015) (holding
that a suggestion that a lawsuit dismissed without prejudice may potentially be barred by the statute
of limitations failed to show “the level of manifest injustice necessary to amend the judgment
pursuant to Rule 59(e)”). For these alternative reasons, the Rule 59(e) motion should be denied.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion to Alter the May 14, 2019 Judgment Pursuant to Fed. R. Civ. P. 59(e) [Doc. 28] is
DENIED.
IT IS SO ORDERED.
______________________________
WILLIAM P. JOHNSON
Chief United States District Judge
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