Heaton v. American Brokers Conduit et al

Filing 39

MEMORANDUM DECISION AND ORDERdenying 28 Plaintiff's Motion to Set Aside. Signed by Judge Ted Stewart on 11/18/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

N. THOMAS HEATON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON PLAINTIFF’S MOTION
TO SET ASIDE

vs.

AMERICAN BROKERS CONDUIT, et al.,

Case No. 2:11-CV-531 TS

Defendants.

This matter is before the Court on Plaintiff’s Motion to Set Aside Order.1 For the reasons
discussed below, the Court will deny Plaintiff’s Motion.
On September 2, 2011, a Clerk’s Judgement was filed in favor of Defendants America's
Wholesale Lender, American Brokers Conduit, American Home Mortgage Servicing, Inc.,
Backman Title Services, Bank of America N.A., Mortgage Electronic Registration Systems, and
ReconTrust Company, N.A. against Plaintiff N. Thomas Heaton. On September 20, 2011,
Plaintiff filed a Motion to Set Aside that Judgment under Fed.R.Civ.P. 59(e) and 60(b).

1

Docket No. 28.
1

“[A] motion to reconsider filed within [28] days after entry of judgment is considered a
Fed.R.Civ.P. 59(e) motion.”2 In this case, Plaintiff filed his Motion to Set Aside eighteen days
after the entry of judgment. The Court will therefore consider this Motion under Rule 59(e).
The Tenth Circuit has recognized the following grounds which warrant a motion to
reconsider under Rule 59(e): “(1) an intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”3
“Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts,
a party’s position, or the controlling law. . . . It is not appropriate to revisit issues already
addressed or advance arguments that could have been raised in prior briefing.”4 As Plaintiff has
not alleged any grounds adequate for this Court to reconsider the judgment under Rule 59(e), the
Court will deny the Motion.
It is therefore
ORDERED that Plaintiff’s Motion to Set Aside (Docket No. 28) is DENIED.
DATED November 18, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge
2

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2005) (second alteration
to reflect change in Rule 59).
3

Id. (citing Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th
Cir.1995)).
4

Id.
2