United States District Court, D. New Mexico
“Asher” Kashanian, Albuquerque, New Mexico, for
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM
COURT ORDER DENYING PLAINTIFFS' AMENDED MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
MATTER comes on for consideration of Plaintiff Andrew
Ross's “Rule 60(b) Motion for Relief From Court
Order Denying Plaintiffs' Amended Motion for Leave to
File Second Amended Complaint” filed May 5, 2017. Doc.
196. Upon consideration thereof, the motion is not well taken
and should be denied without a hearing.
preliminary matter, the court determines that Plaintiff's
“Rule 60(b) Motion” is more aptly a motion under
Fed.R.Civ.P. 59(e). Although Rules 59(e) and 60(b) both allow
a litigant to challenge an adverse ruling, the rules are
distinct and principally depend on when the motion is served.
Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). If a motion is served within the time
period specified by Rule 59(e), then the motion is construed
as a Rule 59(e) motion, even if the motion is styled under
Rule 60(b). Campbell v. Bartlett, 975 F.2d 1569,
1580 n.15 (10th Cir. 1992). The time period specified by Rule
59(e) is 28 days. Plaintiff's May 5 motion (Doc. 196)
challenges an order this court filed on April 18 (Doc. 188).
Because Plaintiff's motion was filed 17 days after this
court's entry of judgment, the motion was filed within
the period specified by Rule 59(e) and will be construed as a
motion made under Rule 59(e).
59(e) motion may be granted “to correct manifest errors
of law or to present newly discovered evidence, ”
Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir.
1997), or when “the court has misapprehended the facts,
a party's position, or the controlling law, ”
Servants of the Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000). However, a Rule 59(e) motion is not an
opportunity to “revisit issues already addressed or
advance arguments that could have been raised in prior
raises several arguments in support of his motion for
reconsideration. He asserts counsel's failure to file an
appropriate motion is attributable to excusable neglect based
on counsel's “unforeseen personal problems”
concerning a disciplinary investigation into counsel's
conduct in the instant litigation. Doc. 196, at 3-4.
Plaintiff also contends that this court erred in ruling on
the first motion for leave when that motion had been amended
and in relying upon the dismissal of the first motion when
dismissing the ostensibly-amended motion at issue here. He
further argues that the attempts to amend the complaint did
not add new theories or demonstrate an intent to create a
moving target to avoid dismissal, and that the interests of
justice favor allowing the claims to proceed.
arguments, however, are unavailing. First, counsel's
engagement with other matters does not rise to the level of
excusable neglect. Cf. McLaughlin v. City of
LaGrange, 662 F.2d 1385, 1387 (11th Cir. 1981).
Second, Plaintiff's characterization that the second
motion for leave to file an amended complaint (Doc. 172)
“amended” Plaintiffs' first motion (Doc. 149)
is not accurate. Although it is true that the second motion
is titled “Plaintiff's Amended Motion for Leave to
File Second Amended Complaint, ” the pleading, as
corroborated by the docket entry, is really a “Second
Motion to Amend/Correct the Amended Complaint.” Because
the substance of the motion addresses amending
Plaintiffs' complaint, not Plaintiffs' prior motion,
and the first motion was never withdrawn, this court
determined that the two motions were really two distinct
attempts to amend Plaintiffs' amended
complaint and proceeded accordingly - working on a
first-in, first-out basis. The court therefore finds that
resolving each motion and noting the resolution of the first
when dismissing the second was not in error. Moreover, this
court identified untimeliness as an independent reason to
deny Plaintiffs' second motion, Doc. 188, at 4 - a
rationale that Plaintiff does not appear to dispute. Finally,
Plaintiff's remaining arguments essentially revisit
issues previously considered and dismissed by this court when
the original motion was briefed and ruled upon and,
consequently, need not be addressed further. See Van
Skiver, 952 F.2d at 1243. A hearing on this motion is
unnecessary. Although no Defendant responded (which
constitutes consent to grant the motion, D.N.M. LR-Civ.
7.1(b)), there is no legal basis for granting this motion.
THEREFORE, IT IS ORDERED that:
Plaintiffs Rule 60(b) Motion for Relief From Court Order
Denying Plaintiffs' Amended Motion for Leave to File
Second Amended Complaint filed May 5, 2017 (Doc. 196) is
Plaintiffs Request for Hearing on Plaintiffs Rule 60(b)
Motion for Relief From Court Order Denying Plaintiffs'
Amended Motion for Leave to File Second Amended Complaint
filed May 21, 2017 (Doc. 210) is denied.
 This distinction, however, does not
materially affect the disposition of this motion.
 This determination, though not
explicit in this court's prior order, is readily implied
from this court's explanation that the second motion was
more aptly a motion for leave to file a third amended
complaint. See Doc. 188, at 2; see also id.
at 3 (characterizing the second motion as one “for