Noble et al v. American National Property & Casualty Insurance Co. et al

Filing 95

ORDER denying 91 Motion; denying 93 Motion to Seal Document. Signed by Chief Judge Jeffrey L. Viken on 4/12/18. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MARTY NOBLE and HOLLI TELFORD,

CIV. 17-5088-JLV

Plaintiffs,
vs.
AMERICAN NATIONAL PROPERTY &
CASUALTY INSURANCE CO;
BOARDWALK PROPERTY
MANAGEMENT CO.; KEVIN WEST;
LEHI OASIS, LLC; DAVID L PARKER;
AUSTIN B. CALES; JARED ELDRIGE
in his official capacity; LARRY DEITER
in his official capacity as Director for
the Division of Insurance for the state
of South Dakota; ROBERT J.
POULSEN and POULSEN & SKOUSEN,

ORDER

Defendants.
Plaintiffs Holli Telford and Marty Noble, appearing pro se, filed this action
against the defendants. (Docket 8). The verified amended complaint includes
wide-ranging allegations, and plaintiffs contend a variety of federal and state
laws support their case. Id. The court granted all defendants’ motions to
dismiss the complaint. (Docket 88). The court’s order imposed filing
restrictions on plaintiff Holli Telford because the court determined she “is a
vexatious litigant and her litigation activities are in fact abusive, harmful, and
intended to harass and annoy both the parties she names in her lawsuits and
the entire judicial system she purports to invoke.” Id. at p. 27 (internal
quotation marks omitted). Plaintiffs filed a motion seeking relief under Rule

59(e) of the Federal Rules of Civil Procedure, alleging the court should vacate
its dismissal of defendants and “employ criminal procedures[.]” (Dockets 91 at
p. 1). One day after the motion, plaintiffs filed their notice of appeal. 1 (Docket
92). Plaintiffs also submitted motions to proceed in forma pauperis on appeal
and to seal documents. (Docket 93).
Rule 59(e) provides, “[a] motion to alter or amend a judgment must be
filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P.
59(e). The court entered judgment in this case on February 26, 2018, and 28
days after that date is March 26, 2018. (Docket 89). Plaintiffs filed their Rule
59(e) motion on March 27, 2018, which is one day late. (Docket 91). Despite
plaintiffs dating their motion March 26, 2018, they delivered the hard copy of
the motion to the clerk of court’s office on March 27, 2018, and the motion was
filed electronically that same day. The court denies plaintiffs’ Rule 59(e) motion
because it is not timely.
As an additional basis for denying plaintiffs’ Rule 59(e) motion, the court
finds the motion fails to meet the applicable legal standard. “Federal Rule of
Civil Procedure 59(e) was adopted to clarify a district court’s power to correct
its own mistakes in the time period immediately following entry of judgment.”
Chapman v. Hiland Partners GP Holdings, LLC, 862 F.3d 1103, 1110-11 (8th
Cir. 2017) (quoting Innovative Home Health Care, Inc. v. P.T.–O.T. Assocs. of
1Although

plaintiffs filed notice of appeal, the court has jurisdiction over
their motion for reconsideration. See Fed. R. App. Proc. 4(a)(4); Miller v.
Marriott Int’l, Inc., 300 F.3d 1061, 1063 (9th Cir. 2002); Square D Co. v.
Fastrak Softworks, Inc., 107 F.3d 448, 450 (7th Cir. 1997).
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the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). “Rule 59(e) motions
serve the limited function of correcting ‘manifest errors of law or fact or to
present newly discovered evidence.’ ” United States v. Metro. St. Louis Sewer
Dist., 440 F.3d 930, 933 (8th Cir. 2006) (quoting Hagerman v. Yukon Energy
Corp., 839 F.2d 407, 414 (8th Cir. 1988)). “ ‘Such motions cannot be used to
introduce new evidence, tender new legal theories, or raise arguments which
could have been offered or raised prior to entry of judgment.’ ” Id. (quoting
Hagerman, 839 F.2d at 414). District courts have broad discretion when
considering whether to grant a motion to amend or alter a judgment under
Rule 59(e). Id. Plaintiffs’ submissions fail to demonstrate “manifest errors of
law or fact or [ ] newly discovered evidence.” Id. (internal quotation marks
omitted). Instead, plaintiffs “tender new legal theories, or raise arguments
which could have been offered or raised prior to entry of final judgment.” Id.
(internal quotation marks omitted).
To the extent plaintiffs’ request “to employ criminal procedures” is an
action this court may take, the court declines to do so. (Docket 91 at p. 1).
Plaintiffs take issue with the aspect of the court’s order imposing filing
restrictions that explore multiple courts’ concerns regarding Ms. Telford’s
alleged residences. (Docket 88 at pp. 21-24). The court did not conclusively
determine whether Ms. Telford claimed false residences or committed fraud on
the court. Id. at pp. 25-26. The court provided an explanation of the grounds
for restricting Ms. Telford’s ability to file new cases. Id. at pp. 19-28. Despite
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plaintiffs’ contentions, the court has not imposed any criminal punishment on
Ms. Telford. (Docket 91 at pp. 1-5). The court denies plaintiffs’ request “to
employ criminal procedures[.]” Id. at p. 1.
Finally, plaintiffs filed motions to proceed in forma pauperis on appeal
and to seal documents. (Docket 93). Plaintiffs are non-prisoners who have not
previously been granted leave to proceed in forma pauperis in this matter. The
court denies plaintiffs’ request to file certain documents under seal. (Dockets
93 & 93-1). Under local rule, this court seals filings in civil cases containing
certain information. D.S.D. Civ. LR 5.2. Plaintiffs’ proposed sealed documents
do not contain that sort of information and the court does not find a basis for
sealing the submission. In fact, they are the sort of court documents that are
routinely not filed under seal, and that has been the practice in the cases Ms.
Telford personally filed in the District of South Dakota. CIV. 17-5069, Docket
4; CIV. 17-5042, Docket 3; CIV. 16-3033, Docket 13.
“An appeal may not be taken in forma pauperis if the trial court certifies
in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3) (emphasis
added). “Good faith in this context is judged by an objective standard and not
by the subjective beliefs of the appellant.” Maddox v. Chisago Cnty. Sheriff
Office, No. 10-CV- 2133, 2010 WL 3119393, at *2 (D. Minn. Aug. 5, 2010)
(citing Coppedge v. United States, 369 U.S. 438, 444-45 (1962)). In
determining whether an appeal is taken in good faith, the court must decide
“whether the claims to be decided on appeal are factually or legally frivolous.”
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Id. (citing Coppedge, 369 U.S. at 444-45). “An appeal is frivolous, and
therefore cannot be taken in good faith, ‘where it lacks an arguable basis either
in law or in fact.’ ” Id. (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The court determined plaintiffs’ amended complaint must be dismissed
pursuant to Rule 12(b)(1) & (6) because it failed to state a plausible claim upon
which relief can be granted and the court lacked subject matter jurisdiction
against certain defendants. (Docket 88 at pp. 14-19). The court finds
plaintiffs’ appeal “lacks an arguable basis either in law or in fact,” Neitzke, 490
U.S. at 325 and, therefore, an appeal cannot be taken in good faith.
Based on the above analysis, it is
ORDERED that plaintiffs’ motion related to Rule 59(e) and “criminal
procedures” (Docket 91) is denied.
IT IS FURTHER ORDERED that plaintiffs’ motion to seal (Docket 93) is
denied.
IT IS FURTHER ORDERED that plaintiffs’ motion to proceed in forma
pauperis on appeal (Docket 93) is denied. Plaintiffs are responsible for paying
the appellate filing fee.
Dated April 12, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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