United States District Court, D. New Mexico
ORDER GRANTING DEFENDANT'S MOTION FOR
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant Corizon's Amended
Motion for Reconsideration of Order Granting Plaintiff's
Motion for Leave to File Second Amended Complaint [Doc. 32],
filed on October 2, 2017. Plaintiff responded in opposition
on the same day. [Doc. 33]. Defendant Corizon replied on
October 3, 3017. [Doc. 35]. The Court will grant the motion
for reconsideration, vacate its September 30, 2017 order
allowing Plaintiff to amend, consider Defendant's
untimely response in opposition to the proposed amendment,
and issue appropriate recommendations to the presiding judge
on Plaintiff's motion to amend.
December of 2016, the Court sua sponte reviewed
Plaintiff's original pro se Complaint under Fed.R.Civ.P.
12(b)(6). The Court determined that Plaintiff had failed to
assert sufficient factual allegations to trigger liability on
the part of Defendant Corizon. [Doc. 10]. The Court gave
Plaintiff 30 days to amend his complaint to cure the
deficiency. Id. Plaintiff timely filed an Amended
Complaint. [Doc. 11]. However, Corizon moved to dismiss the
Amended Complaint because, it argued, the pleading still
failed to state a claim against it. [Doc. 12]. That motion
was fully briefed by February 2, 2017. [Docs. 15, 17].
the motion to dismiss was still pending, the Court appointed
attorney Samantha Adams to represent Plaintiff. [Doc. 23].
Within four days of her appointment, on September 15, 2017,
Ms. Adams moved for leave to file a Second Amended Complaint.
[Doc. 27]. Defendant's response was due no later than
September 29, 2017. However, Defendant failed to file a
timely response. Accordingly, on September 30, 2017, the
Court construed the lack of response as consent to grant the
motion to amend, granted the motion to amend, and denied the
motion to dismiss as moot. [Doc. 29].
the Motion for Leave to File Second Amended Complaint had
already been granted, Defendant filed its late response in
opposition. [Doc. 30]. The next day, Defendant filed a motion
for reconsideration and an amended motion for reconsideration
of the order granting leave to file a Second Amended
Complaint. [Docs. 31, 32]. Defendant explains that it
believed it had been granted an extension of time. [Docs. 32,
35]. More importantly, though, Defendant focuses on the
“strong predisposition to resolve cases on their
merits.” [Doc. 35] at 2. Defendant asks the Court to
vacate its September 30, 2017 Order, reinstate
Defendant's motion to dismiss and Plaintiff's motion
for leave to amend, and entertain Defendant's response in
opposition to Plaintiff's motion for leave to amend.
[Docs. 32, 35].
Federal Rules of Civil Procedure do not expressly recognize a
motion for reconsideration. See In re Thornburg Mortgage,
Inc. Secs. 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).
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); see also
Fye v. Okla., 516 F.3d 1217, 1224 (10th Cir. 2008);
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).
urges that courts should make decisions on the merits, and
therefore, its late response to Plaintiff's motion to
amend should be heard. [Docs. 32, 35]. The Court agrees.
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
Defendant Corizon's Amended Motion for Reconsideration of
Order Granting Plaintiff s Motion for Leave to File Second
Amended Complaint [Doc. 32] is GRANTED.
IS FURTHER ORDERED that the Court's September
30, 2017 Order (Granting Plaintiffs Motion for Leave to File
Second Amended Complaint and Denying as Moot Defendant's
Motion to Dismiss and Strike) [Doc. 29] is
VACATED. Both the Motion to Dismiss [Doc.
12] and the Motion to Amend [Doc. 27] are
REINSTATED. The Court will consider
Defendant's untimely response and, in light thereof,
issue its recommendation on the motions.