Glenn v. Moss et al

Filing 143

MEMORANDUM DECISION AND ORDER denying 139 Motion to Reopen Case; denying 141 Motion for New Trial; denying 141 Motion to Set Aside Judgment. Signed by Judge David Nuffer on 1/29/18 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ENDRE GLENN,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTIONS FOR NEW TRIAL OR
RELIEF FROM JUDGMENT

v.
Case No. 2:15-cv-00165-DN
BRENNAN H. MOSS and PIA ANDERSON
DORIUS REYNARD & MOSS, LLC,

District Judge David Nuffer

Defendants.
This case was dismissed on summary judgment. 1 A previous motion by plaintiff Endre
Glenn (“Glenn”) to alter judgment or grant relief from judgment was denied. 2 Glenn now has
filed two additional post-judgment motions for relief from summary judgment (the “Motions”), 3
which do not improve upon the positions set forth in the prior post-judgment motion. These
Motions can be denied without opposition.
Glenn contends that he has discovered new evidence that was not available to him until
November 1, 2017, after summary judgment was entered. 4 The evidence at issue consists of
declarations from a state court action in which Glenn was the plaintiff. 5 The declarations were

1

Memorandum Decision and Order Accepting Report and Recommendations (“Summary Judgment Order”), docket
no. 133, filed October 19, 2017.
2

Memorandum Decision and Order Denying Plaintiff’s Motion to Alter Judgment or Grant Relief from Judgment
(“Prior Post-Judgment Order”), docket no. 138, filed November 29, 2017.

3

Motion Reopen Case Under FRCP 59(a) Motion New Trial or Grant Relief from Judgment Under FRCP 60(b)(2),
60(b)(3), docket no. 139, filed December 21, 2017 (“Motion No. 139”); Plaintiff’s Motion for New Trial Under
FRCP 59(a) and/or Grant Relief from Judgment Under FRCP 60(b)(2), 60(b)(3), docket no. 141, filed December 21,
2017 (“Motion No. 141”).
4

Motion No. 139 at 2.

5

Id.; Motion No. 141 at 2.

considered and rejected on Glenn’s prior motion for relief from judgment. 6 The declarations,
which Glenn attests he obtained from his former lawyer, 7 were previously discoverable with
diligence. Moreover, the declarations are not material or likely to produce a different result.
Glenn argues that the declarations show fraud on the part of the buyer in the underlying failed
real estate transaction, which is not a claim properly raised in this legal malpractice action. 8
Therefore, the declarations do not compel a new trial under Rule 59(a). 9
Glenn alternatively requests relief from judgment under Rules 60(b)(2) and 60(b)(3). The
Motions do not satisfy Rule 60(b) under either subsection. As explained above, Glenn lacks
newly discovered evidence that, with reasonable diligence, could not have been discovered. 10
And although Glenn continues to argue that the buyer in his home sale acted fraudulently, he has
not shown fraud, misrepresentation, or misconduct by the defendants to justify relief from
judgment. 11
Glenn once again argues that he has been denied a jury trial. 12 Glenn’s claims were
dismissed on summary judgment because no genuine dispute of material fact required a trial. 13 It
is well established that “[t]he Seventh Amendment is not violated by proper entry of summary
judgment because such a ruling means that no triable issue exists to be submitted to a jury.” 14
6

Prior Post-Judgment Order at 1–2.

7

Declaration of Glenn ¶10, docket no. 140, filed December 21, 2017.

8

Summary Judgment Order at 7 (“Glenn’s allegation of fraud against the Buyer at this late date is neither relevant to
the actual claims nor supported by the facts.”).

9

Fed. R. Civ. P. 59(a); Joseph v. Terminix Int’l Co., 17 F.3d 1282, 1285 (10th Cir. 1994) (identifying the elements
required for a new trial based on new evidence).
10

Fed. R. Civ. P. 60(b)(2).

11

Fed. R. Civ. P. 60(b)(3) (requiring fraud “by an opposing party”).

12

Motion No. 141 at 7–8.

13

Fed. R. Civ. P. 56(a).

14
Shannon v. Graves, 257 F.3d 1164, 1167 (10th Cir. 2001) (citing Fidelity & Deposit Co. v. United States, 187
U.S. 315, 319-20 (1902)).

2

The Motions do not present a basis for disturbing the summary judgment dismissing
Glenn’s case. Accordingly, the Motions are denied.
ORDER
Having reviewed and considered the Motions, and for good cause appearing,
IT IS HEREBY ORDERED that the Motions 15 are DENIED. The case remains dismissed
and closed.
Dated January 29, 2018.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

15

Docket no. 139, docket no. 141.

3