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Muller v. Vilsack

United States District Court, D. New Mexico

September 22, 2017

MILOSLAV MULLER, Plaintiff,
v.
TOM VILSACK, Secretary, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA A RMIJO, CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Plaintiff's Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 272) [Doc. 277] and Plaintiff's Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 271) [Doc. 278]. The Court, having considered the parties' submissions, the relevant law, and being otherwise fully advised in the premises, hereby DENIES both Motions.

         ANALYSIS

         Standard

         As previously set forth in numerous orders in this case [see, e.g., Doc. 271 p. 4], the Court liberally construes Plaintiff's pro se pleadings. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); McBride v. Deer, 240 F.3d 1287, 1290 (10th Cir. 2001).

         The Federal Rules of Civil Procedure do not expressly recognize a motion for reconsideration. In re Thornburg Mortg., Inc. Sec. Litig., 824 F.Supp.2d 1214, 1240 (D.N.M. 2011), aff'd sub nom. Slater v. A.G. Edwards & Sons, Inc., 719 F.3d 1190 (10th Cir. 2013). When a party seeks reconsideration of a non-final order, the motion is considered “an interlocutory motion invoking the district court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.” Wagoner v. Wagoner, 938 F.2d 1120, 1122 n.1 (10th Cir. 1991). Although a district court has “considerable discretion” to revisit its prior decisions, see Thornburg Mortgage, 824 F.Supp.2d at 1240, “as a rule [a court] should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice, ” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (citation and internal quotation marks omitted). A motion for reconsideration is an “inappropriate vehicle[] to reargue an issue previously addressed by the court when the motion merely advances new arguments[] or supporting facts which were available at the time of the original motion.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Otero v. Nat'l Distrib. Co., 627 F.Supp.2d 1232, 1237 (D.N.M. 2009). Rather, appropriate “[g]rounds warranting a motion to reconsider include (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.” Paraclete, 204 F.3d at 1012 (citation omitted).

         Plaintiff's Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 272)

         In the Court's Memorandum Opinion and Order [Doc. 272] at issue in this Motion [Doc. 277], the Court denied leave to Plaintiff to file his Proposed Third Amended Complaint on the following grounds:

1) the futility of the proposed amendments; 2) Plaintiff knew of the facts upon which the proposed amendment is predicated before filing his suit in 2013 but has failed to include the allegations or claims within any prior version of the complaint, despite three opportunities to do so; 3) the unreasonable delay given Plaintiff's knowledge of the facts and prior amendments to his complaint; and 4) Plaintiff's motivation, in part, is to revive a claim dismissed in a previous order of the Court.

[Doc. 272, pp. 6-7] In the present Motion to Reconsider [Doc. 277], Plaintiff repeats his argument that he did not include particular allegations in his earlier complaint “in the best interest of judicial economy” [Doc. 277, pp. 2-3], and, moreover, argues that the issues that he raises in his Proposed Third Amended Complaint are issues of significant public concern, citing Deutsch v. Jordan, 618 F.3d 1093, 1100 (10th Cir. 2010) (defining matters of public concern in cases concerning the First Amendment rights of public employees). First, the requirements of notice pleading will always take priority over judicial economy, requiring every plaintiff to adequately state his or her claim. Second, neither of Plaintiff's arguments are persuasive or overcome the futility of the proposed amendments. Thus, Plaintiff's Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 272) [Doc. 277] is DENIED.

         Plaintiff's Motion to Partially Reconsider Memorandum Opinion and Order (Doc. 271)

         In the Court's Memorandum Opinion and Order [Doc. 271] at issue in this Motion [Doc. 288], the Court granted State Defendants' Motion to Dismiss as to Defendants Manzanares, Fly, and Hanosh for insufficient service. [Doc. 271, pp. 8, 17] The Court further considered whether to grant an extension to Plaintiff to attempt to serve the three unserved State Defendants, and declined to do so. The Court explained at length its reasons for denying an extension:

1) Plaintiff did not attempt to effect service until approximately one week before his deadline to do so; 2) Plaintiff only attempted service after the Magistrate Judge entered an Order to Show Cause directing Plaintiff to show cause why his complaint should not be dismissed for failing to advance his case; 3) Plaintiff did not explain any circumstance preventing him from attempting service earlier; 4) Plaintiff's unexplained delay was the cause of his inability to attempt to follow the secondary and tertiary methods of service set forth in New Mexico Rule of Civil Procedure 1-004(F); and 5) Plaintiff previously brought the same claim against the State Defendants, which Plaintiff dismissed voluntarily, without prejudice, after the Court entered an Order to Show Cause why the Complaint should not be dismissed for the failure to effect service within the 120 [day] deadline. Muller v. Vilsack, et al., 12-CV-1136-RB-LFG [Doc. 1, ¶¶ 43-52; Doc. 5; Doc. 8]. Between these two lawsuits, Plaintiff has been afforded 240 days to serve the State Defendants, and rather than diligently making efforts to do so, he sat on his rights. Furthermore, nowhere in his Motion to Extend the Time for Services of Process does Plaintiff ...

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