United States District Court, D. New Mexico
ROBERT F. SARTORI, Plaintiff,
STEIDER & ASSOCIATES, P.C., TIMOTHY D. STEIDER, SUNWEST TRUST, INC., TERRY WHITE, MOLLY BENCY, FRED HERMANN, TIM STEIDER, Defendants.
MATTER is before the Court on plaintiff's Motion to
Reconsider the Court's Order Granting Sunwest
Defendants' Motion for Judgment on the Pleadings (Doc.
58), filed March 9, 2017. Defendants Sunwest Trust, Inc., Terry
White, Molly Bency and Fred Hermann (“Sunwest
defendants”) filed a response (Doc. 60), and plaintiff
filed a reply (Doc. 61). The Court, having carefully
considered the motion, briefing, and relevant law, and being
otherwise fully informed, finds that Plaintiff's motion
to reconsider is not well taken and should be DENIED.
Sartori asks the Court to reconsider its order adopting the
magistrate judge's Proposed Findings and Recommended
Disposition (“PF&RD”) (Doc. 52). The order
adopting the PF&RD granted the Sunwest defendants'
Motion for Judgment on the Pleadings (Doc. 16). Doc. 52 at 1.
The Court issued its order on February 8, 2017-20 days after
the magistrate judge entered the PF&RD. See Doc.
50. The PF&RD advised Mr. Sartori that he had fourteen
days to file objections, and that his failure to do so would
preclude appellate review. Doc. 50 at 11. Despite this clear
warning, Mr. Sartori did not mail his objections to the
PF&RD until February 8, 2017, Doc. 54 at 5, and the Court
received and docketed the objections on February 13, 2017,
Doc. 54 at 1. On March 8, 2017, the Court issued an Order
Overruling Plaintiff's Untimely Objections. Doc. 56.
Sartori attempts to bring his motion to reconsider pursuant
to Fed.R.Civ.P. 59(e) or 60(b). See Doc. 58 at 1.
Technically, the Federal Rules of Civil Procedure do not
recognize a motion to reconsider. See Computerized
Thermal Imaging, Inc. v. Bloomberg, L.P., 312 F.3d 1292,
1296 n.3 (10th Cir. 2002); Van Skiver v. United
States, 952 F.2d 1241, 1243 (10th Cir. 1991). However,
Rule 54(b) grants a district court the discretion to revise
interlocutory orders at any time prior to entry of a final
judgment. See Riggs v. Scrivner, Inc., 927 F.2d
1146, 1148 (10th Cir. 1991). When evaluating whether to
reconsider an interlocutory order pursuant to Rule 54(b),
courts apply the same legal standard as used for a motion to
alter or amend a judgment under Rule 59(e). See Tomlinson
v. Combined Underwriters Life Ins. Co., 684 F.Supp.2d
1296, 1299 (N.D. Okla. 2010); Sump v. Fingerhut,
Inc., 208 F.R.D. 324, 326-27 (D. Kan. 2002).
Rule 59(e), a motion to reconsider is warranted in the event
of “(1) an intervening change in controlling law; (2)
new evidence previously unavailable; or (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). A motion to reconsider is also
“appropriate where the court has misapprehended the
facts, a party's position, or the controlling law.”
Id. However, a motion to reconsider “is not
appropriate to revisit issues already addressed or advance
arguments that could have been raised in a prior
briefing.” Id. And “[a] motion to
reconsider is “not a second chance for the losing party
to make its strongest case or to dress up arguments that
previously failed.” Voelkel v. General Motors
Corp., 846 F.Supp. 1482, 1483 (D. Kan.),
aff'd, 43 F.3d 1484 (10th Cir. Dec. 21, 1994)
Sartori does not argue that there has been an intervening
change in controlling law, nor does he argue that there is
new evidence which was previously unavailable. The bulk of
Mr. Sartori's motion rehashes arguments already addressed
by the magistrate judge. The Court will not revisit those
arguments. In addition, the Court will not entertain Mr.
Sartori's collateral estoppel argument, raised for the
first time in his motion to reconsider, as there is no reason
he could not have raised this argument in his response to the
Motion for Judgment on the Pleadings (Doc. 35). Finally, Mr.
Sartori fails to show clear error or manifest injustice.
Having reviewed the PF&RD, the Court is not convinced
that the magistrate judge misapprehended the facts, any
party's position, or the controlling law.
alternative, Mr. Sartori requests leave to amend his
complaint. Doc. 59 at 16. Mr. Sartori did not follow the
proper procedures to amend. See Fed. R. Civ. P.
15(a)(2), D.NM.LR-Civ. 7.1(a), D.N.M.LR-Civ. 15.1(a)
(“A proposed amendment to a pleading must accompany the
motion to amend.”) Therefore, the Court will deny the
request to amend.
Sartori's Motion to Reconsider is DENIED. The Court also
DENIES Mr. Sartori's request for leave to amend his
 Mr. Sartori failed to comply with the
local rules. A “[m]ovant must determine whether a
motion is opposed, and a motion that omits recitation of a
good-faith request for concurrence may be summarily
denied.” D.N.M.LR-Civ. 7.1(a). Mr. Sartori merely
states that he “assumes this Motion will be
opposed.” Doc. 58 at 2. Despite Mr. Sartori's