Henderson v. Rourke et al

Filing 22

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson DENYING 18 MOTION to Change Venue, DENYING 21 MOTION to Grant Leave to Electronically File, and DENYING 17 MOTION to Reopen Case. (cmm)

Case 1:20-cv-01139-WJ-JHR Document 22 Filed 11/21/22 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANDREW HENDERSON,
Plaintiff,
v.

No. 1:20-cv-01139-WJ-JHR

SCHNEIDER NATIONAL TRUCKING INC.,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REOPEN CASE
THIS MATTER comes before the Court on pro se Plaintiff's Motion to Reinstate/Reopen
Case, Doc. 17, filed November 4, 2022 ("Motion to Reopen"), Plaintiff's Motion for Change of
Venue, Doc. 18, filed November 4, 2022, and Plaintiff's Motion to Grant Leave to Electronically
File, Doc. 21, filed November 4, 2022.
Procedural Background
The events giving rise to this case occurred during Plaintiff’s employment as a truck driver
with Schneider National Trucking Inc. See Amended Complaint, Doc. 6, filed November 17,
2020.
United States Magistrate Judge Jerry H. Ritter notified Plaintiff that Plaintiff's original
Complaint failed to state a claim against Defendants Rourke and Schneider because there were no
factual allegations regarding Defendants Rourke and Schneider, and that the Complaint failed to
state a claim against Schneider’s managers, who were not named as Defendants, because it
contained only conclusory allegations of discrimination and did not allege facts showing Plaintiff
was terminated under circumstances giving rise to an inference of discrimination. See Doc. 5 at 3,
filed November 6, 2020 (explaining that "[C]onclusory allegations without supporting factual

Case 1:20-cv-01139-WJ-JHR Document 22 Filed 11/21/22 Page 2 of 6

averments are insufficient to state a claim on which relief can be based"). Judge Ritter granted
Plaintiff an opportunity to file an amended complaint.
After Plaintiff filed his Amended Complaint, Doc. 6, filed November 17, 2020, the
undersigned notified Plaintiff that the Amended Complaint failed to state claims for racial and
gender discrimination and for hostile work environment because while it contained conclusory
allegation regarding discrimination, it did not allege facts showing he was terminated under
circumstances giving rise to an inference of racial or gender discrimination. See Mem. Op. and
Order of Dismissal at 4, Doc. 10, filed March 24, 2021. The Court dismissed the case without
prejudice and entered its Rule 58 Judgment. See Doc. 11, filed March 24, 2021.
Plaintiff subsequently filed his First Motion to Reopen this case stating:
Plaintiff Andrew Henderson filed with his Amended Complaint actual
documentation and audio file evidence that clearly and strongly indicates there was
quite questionable incidents that occurred and could [have] been results of
racist/immoral feelings or animosity or envy against plaintiff ... The Plaintiff in his
amended complaint does not express "Conclusory allegations" but communicates
his allegations to be "Non-Conclusory allegations" as stated and expressed in his
amended Complaint.
First Motion to Reopen at 3-4, Doc. 12, filed May 19, 2021. It appears Plaintiff was contending
that the Court erred when it dismissed Plaintiff's case after stating:
The Amended Complaint fails to state claims for racial and gender discrimination
and for hostile work environment. The Amended Complaint contains conclusory
allegations that Defendant's managers "discriminated against him that he is a
minority of a protected class of American Negro and Non-Hispanic/Mexican
Caucasian," however “conclusory allegations without supporting factual averments
are insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). Plaintiff has not alleged facts showing he was
terminated under circumstances giving rise to an inference of racial or gender
discrimination. While Plaintiff alleges two instances where a manager used
language with a sexual connotation, he has not alleged facts showing that those
comments were made because of his race or gender, or that those comments were
severe enough to create an abusive work environment.
Order of Dismissal at 4, Doc. 10, filed March 24, 2021.
2

Case 1:20-cv-01139-WJ-JHR Document 22 Filed 11/21/22 Page 3 of 6

The Court denied Plaintiff's First Motion to Reopen stating that Plaintiff's Amended
Complaint failed to state a claim, 28 U.S.C. § 1915(e)(2) requires the Court to dismiss the case if
the court determines that the action fails to state a claim, and
Although Plaintiff filed 61 pages and an audio CD of evidence in support of his
claim, the Court cannot comb the record or make Plaintiff’s arguments for him. See
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“we, like the
district courts, have a limited and neutral role in the adversarial process, and are
wary of becoming advocates who comb the record of previously available evidence
and make a party's case for it”); Biogenics, Inc. v. Kazen, 6 Fed.Appx. 689, 692
(10th Cir. 2001) (“the court will not construct arguments or theories for a pro se
litigant”).
Doc. 13 at 2-3, filed May 25, 2021.
Plaintiff also filed a motion to transfer this case to the Middle District of Alabama where
Plaintiff resides. See Doc. 14, filed May 26, 2021. The Court denied Plaintiff's motion to transfer
this case to the Middle District of Alabama because the Court has dismissed this case. See Doc. 15,
filed September 13, 2021 (stating "Because the dismissal was without prejudice, Plaintiff may
refile his case in an appropriate venue").
Second Motion to Reopen Case
Plaintiff has filed a second Motion to Reopen this case along with a Second Amended
Complaint. See Doc. 16, filed November 4, 2022; Notice of Claim, Doc. 19, filed November 4,
2022; Supporting Documents, Doc. 20, filed November 4, 2022.
Grounds for relief from an order or final judgment include:
(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 ... misrepresentation, or misconduct by an opposing party;

(4)

the judgment is void;

3

Case 1:20-cv-01139-WJ-JHR Document 22 Filed 11/21/22 Page 4 of 6

(5)

the judgment has been satisfied, released, or discharged...;

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b). A motion for relief from a final judgment for reasons (1), (2), and (3) must
be made no more than a year after the entry of the judgment. See Fed. R. Civ. P. 60(c)(1).
Relief is not available for the first three reasons of Rule 60(b) because Plaintiff filed his
Second Motion to Reopen more than a year after the Court entered its Rule 58 Judgment. Relief
is also not available for reasons (4) and (5) because Plaintiff has not shown that the judgment is
void or has been satisfied, released or discharged. Consequently, any relief available to Plaintiff
is through reason (6):
We have described Rule 60(b)(6) as a grand reservoir of equitable power to do
justice in a particular case. Although the rule should be liberally construed when
substantial justice will thus be served, relief under Rule 60(b)(6) is extraordinary
and reserved for exceptional circumstances.
Johnson v. Spencer, 950 F.3d 680, 700-701 (10th Cir. 2020) (citations and quotation marks
omitted); see also Zurich North America v. Matrix Service, Inc., 426 F.3d 1281, 1293 (10th Cir.
2005) ("Rule 60(b)(6) relief is even more difficult to attain and is appropriate only when it offends
justice to deny such relief. The denial of a 60(b)(6) motion will be reversed only if we find a
complete absence of a reasonable basis and are certain that the ... decision is wrong") (citations
and quotation marks omitted).
Plaintiff's Second Motion to Reopen states the same grounds for relief as his First Motion
to Reopen. After reciting the factual allegations of workplace discrimination in his Amended
Complaint, Plaintiff states:
Plaintiff Andrew Henderson filed with his Amended Complaint actual
documentation and audio file evidence that clearly and strongly indicates there was
quite questionable incidents that occur[r]ed and could [have] been results of
racist/immoral feelings or animosity or envy against the plaintiff ... The Plaintiff in
his amended complaint does not express "Conclusory allegations" but
4

Case 1:20-cv-01139-WJ-JHR Document 22 Filed 11/21/22 Page 5 of 6

communicates his allegations to be "Non-Conclusory Allegations" as stated and
expressed in his amended Complaint.
Second Motion to Reopen at 3-4.
The Court denies Plaintiff's Second Motion to Reopen because the Court previously
addressed the issue of whether Plaintiff's Amended Complaint stated a claim when the Court
denied Plaintiff's First Motion to Reopen. See Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) ("a motion for reconsideration and a successive Rule 60(b) motion ... are
inappropriate vehicles to reargue an issue previously addressed by the court when the motion
merely advances new arguments, or supporting facts which were available at the time of the
original motion).
Second Motion to Transfer Case
Plaintiff has also filed a second Motion to Transfer this case to the Middle District of
Alabama on the grounds that he resides in the Middle District of Alabama and "does not have the
financial ability to commute to and from Albuquerque/New Mexico to attend required court
proceedings." Motion to Transfer at 4. The Court denies Plaintiff's Motion to Transfer this case
to the Middle District of Alabama because the Court has dismissed this case and entered its Rule
58 Judgment. See Rule 58 Judgment, Doc. 11, filed March 24, 2021.
Motion for Leave to File Electronically
The Court denies Plaintiff's Motion for leave to file electronically because the Court has
dismissed this case. See Doc. 11, filed March 24, 2021.
IT IS ORDERED that:
(i)

Plaintiff's Motion to Reinstate/Reopen Case, Doc. 17, filed November 4, 2022, is
DENIED.

5

Case 1:20-cv-01139-WJ-JHR Document 22 Filed 11/21/22 Page 6 of 6

(ii)

Plaintiff's Motion for Change of Venue, Doc. 18, filed November 4, 2022, is
DENIED.

(iii)

Plaintiff's Motion to Grant Leave to Electronically File, Doc. 21, filed November 4,
2022, is DENIED.
________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

6