Baer v. Salt Lake City Corporation et al

Filing 80

ORDER Denying Motions for Reconsideration, Granting 54(b) Relief, and Adopting Report and Recommendation-denying 56 Motion for Summary Judgment. Magistrate Judge Paul M. Warner no longer assigned to case; granting 64 Motion for Entry of Judgment under Rule 54(b); denying 66 Motion to Vacate ; denying 68 Motion ; adopting Report and Recommendations re 74 Report and Recommendations.; denying 76 Motion for Summary Judgment and CERTIFIES its Order Adopting Report a nd Recommendation on April 25, 2014 (Dkt. No. 63) as a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure with respect to the Courts Order dismissing Plaintiffs claims against the City Defendants. Magistrate Judge Paul M. Warner no longer assigned to case. Signed by Judge Clark Waddoups on 9/11/14. (jmr)

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

MARLIN BAER,
Plaintiff,
v.
SALT LAKE CITY CORPORATION,
LARRY BOWERS, COUNTY OF SALT
LAKE, GENO GARCIA, JEFFERY
SEIGAL, TENNO NAVAREZ, DON
HUNSAKER, TRENTON HEINTZ, and
IENA SWANKE, 1

ORDER DENYING MOTIONS FOR
RECONSIDERATION, GRANTING 54(b)
RELIEF, AND ADOPTING REPORT
AND RECOMMENDATION

Case No. 2:13-cv-00336-CW-PMW
Judge Clark Waddoups

Defendants.

I.

Motions to Reconsider Order Dated April 25, 2014 Adopting Report and
Recommendations
The court entered an Order Adopting Report and Recommendation on April 25, 2014

(Dkt. No. 63) in which it approved and adopted the Report and Recommendation of Magistrate
Judge Paul M. Warner (Dkt. No. 55) recommending that the Motion to Dismiss (Dkt. No. 26) of
City Defendants (as defined therein) be granted. As noted in its Order dated April 25, 2014,
because Plaintiff is proceeding pro se, the court has liberally construed his pleadings, holding
them to a “less stringent standard than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quotations and citation omitted). The court, however, has not adopted
the role of advocate for Plaintiff, and accords Plaintiff’s filings the merit they deserve based on

1

The court identifies the named defendants in this caption in the same manner they are identified in
Plaintiff Marlin Baer’s Complaint. However, Plaintiff has either erroneously identified several of those
Defendants or misspelled several of their names.

the substance of their arguments. See Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff has filed a number of pleadings responsive to the court’s Order dated April 25,
2014. (See Dkt. Nos. 66, 68, 71.) Though variously styled, each is in essence a Motion to
Reconsider the Order dated April 25, 2014 adopting the Report and Recommendation. Although
motions for reconsideration are not specifically provided for under the Federal Rules of Civil
Procedure, courts entertain them under Rule 54(b), if they are interlocutory, or under Rule 60(b),
if they are final. See Raytheon Constructors v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir.
2003).
The Tenth Circuit has affirmed that “revisiting” issues in a motion for reconsideration
that have already been addressed in the initial briefing “is not the purpose of a motion to
reconsider”; more importantly, “advancing new arguments or supporting facts which were
otherwise available for presentation when the original . . . motion was briefed” is
“inappropriate.” Van Skiver v. United States, 952 F.2d 1241, 1242 & 1244 (10th Cir. 1991)
(internal quotation marks and citations omitted). Plaintiff’s various pleadings do both. Moreover,
“[r]elief under Rule 60(b) is discretionary and is warranted only in exceptional circumstances”
such as those listed in Rule 60(b). Id. (quoting Bud Brooks Trucking, Inc. v. Bill Hodges
Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)). “Grounds warranting a motion to
reconsider include (1) an intervening change in the controlling law, (2) new evidence previously,
and (3) the need to correct clear error or prevent manifest injustice.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000). No such grounds are present here. “Motions to
reconsider are not to be used as a second chance when a party has failed to present its strongest
case in the first instance.” Sec. Serv. Fed. Credit Union v. First Am. Mortgage Funding, LLC,
906 F. Supp. 2d 1108, 1111 (D. Colo. 2012).
2

Each of Plaintiff’s filings objecting to the court’s Order dated April 25, 2014 raises the
same arguments as his earlier filings in the case. The various filings “cover everything from a
request to vacate the Court’s order granting the City Defendants’ Motion to Dismiss and
challenging the Court’s jurisdiction of this case to identifying the Court as a defendant,” going so
far as to “request oversight by a three-judge panel from the United States Court of International
Trade.” (City Defs.’ Resp. 2 [Dkt. No. 70].) The court also is not impressed with the various
allegations of fraud, conflict of interest, even bribery on the part of Judge Warner and this court.
Though argued passionately, Plaintiff’s arguments in these filings are wholly without
substantive merit. As the court found following the recommendation of Judge Warner, Plaintiff
has not satisfied the requirements necessary to overcome a motion to dismiss for failure to state a
claim on which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Accordingly, the court must affirm its Order dated April 25, 2014 and dismiss
Plaintiff’s claims against the City Defendants with prejudice.
II.

City Defendants’ Rule 54(b) Motion
Once the court issued its Order Adopting Report and Recommendation on April 25, 2014

(Dkt. No. 63), City Defendants moved the court to certify this Order as a Final Judgment as to
the City Defendants pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Under this
Rule,
When an action presents more than one claim for relief—whether as a claim,
counterclaim, crossclaim, or third-party claim—or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly determines there is no
just reason for delay.
For the reasons stated in the City Defendants’ Motion and Memorandum, and for good
cause shown therein, the Court hereby GRANTS the motion, and certifies its Order Adopting
3

Report and Recommendation on April 25, 2014 (Dkt. No. 63) as a final judgment with respect to
the Court’s Order dismissing Plaintiff’s claims against the City Defendants.
III.

Report and Recommendation dated June 3, 2014
Plaintiff moved for summary judgment. (Dkt. No. 56, 76.) 2 As has been noted (see Order

dated April 25, 2014 [Dkt. No. 63]), this case has been referred to United States Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B) (see Dkt. No. 2). On June 3, 2014,
Judge Warner issued a Report and Recommendation recommending that the court deny
Plaintiff’s Motion for Summary Judgment in its entirety. (Dkt. No. 74.) Plaintiff failed to file an
Objection or other response to Judge Warner’s Report and Recommendation within the permitted
timeframe. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1).
Accordingly, and upon a de novo review of the Judge Warner’s findings, the court
APPROVES AND ADOPTS Judge Warner’s Report and Recommendation (Dkt. No. 74) in its
entirety, denying Plaintiff’s motions for summary judgment (Dkt. Nos. 56, 76).
IV.

Conclusion
For the reasons stated above, the court DENIES Plaintiff’s various motions for

reconsideration (Dkt. Nos. 66, 68, 71), GRANTS City Defendant’s Motion for Certification
(Dkt. No. 64) and CERTIFIES its Order Adopting Report and Recommendation on April 25,
2014 (Dkt. No. 63) as a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil

2

Plaintiff filed a second Request for Summary Judgment Based on Facts, Law and Failure by Defendants
to Comply with Rules of Procedure (Dkt. No. 76) on August 15, 2014 that was in all substantial respects
identical to his previous Request for Summary Judgment (Dkt. No. 56), which was the focus of Judge
Warner’s Report and Recommendation (Dkt. No. 74). Because Plaintiff’s second motion “raises
substantially the same arguments as his prior motion for summary judgment, which the Court denied
(Dkt. No. 75), and presents no additional material facts or legal arguments that would entitle him to
judgment as a matter of law,” the court considers it together with Judge Warner’s Report and
Recommendation relating to Plaintiff’s first, virtually verbatim motion for summary judgment in the
interest of judicial economy.
4

Procedure with respect to the Court’s Order dismissing Plaintiff’s claims against the City
Defendants, and APPROVES AND ADOPTS Judge Warner’s Report and Recommendation
(Dkt. No. 74) in its entirety, thus DENYING Plaintiff’s motions for summary judgment (Dkt.
Nos. 56, 76).
SO ORDERED this 11th day of September, 2014.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

5