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Calmat Co. v. Oldcastle Precast, Inc.

United States District Court, D. New Mexico

June 18, 2018

CALMAT CO., Plaintiff,


         This matter comes before the Court upon Rune Kraft's “Objection and Motion for Reconsideration of Order Entered as Document 188” (Motion for Reconsideration), filed December 13, 2017. (Doc. 200). Document 188 is the Court's December 4, 2017, Order ruling on “Defendant Oldcastle Precast, Inc.'s Motion to Strike Rune Kraft's Motions to Void All Rulings (Docs. 161 and 170), Strike his Motion Related to Document 146 (Doc. 171), Deny his Motions for Leave to File as Amicus Curiae (Docs. 163, 164, and 166) and Instruct the Clerk of the Court not to Accept Further Pleadings from Rune Kraft” (Oldcastle Motion) (Doc. 174).[1]

         Defendant Oldcastle Precast, Inc. (Oldcastle) filed a response to the Motion for Reconsideration on December 28, 2017, and Rune Kraft (Kraft) filed a reply on January 4, 2018. (Docs. 213 and 223). Having reviewed the Motion for Reconsideration and the accompanying briefs, the Court denies the Motion for Reconsideration.

         A. Motion for Reconsideration Standard

         The Tenth Circuit has analyzed motions to reconsider interlocutory orders, like this one, under Fed. R. Civ. R. 54(b)[2] and looked to Fed.R.Civ.P. 59(e) for guidance in addressing those motions to reconsider. Ankeney v. Zavaras, 524 Fed.Appx. 454, 458 (10th Cir. 2013) (stating that, in considering Rule 54(b) motion to reconsider, “court may look to the standard used to review a motion made pursuant to Federal Rule of Civil Procedure 59(e).”). A Rule 59(e) movant carries the burden of demonstrating that the Court should alter or amend a judgment. See, e.g., Winchester v. Wilkinson, 2015 WL 2412175, at *2 (E.D. Okla.) (“court finds petitioner has failed to meet his burden for relief under Fed.R.Civ.P. 59(e).”).

         Rule 59(e) relief is appropriate if there is new controlling law, new evidence not available previously, or if there is a “need to correct clear error or prevent manifest injustice.” Ankeney, 524 Fed.Appx. at 458 (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). The Tenth Circuit has defined clear error as “an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.” Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1236 (10th Cir. 2001). Although the Tenth Circuit has not specifically defined manifest injustice in the Rule 59(e) context, other courts have defined manifest injustice as “more than just a clear and certain prejudice to the moving party, but also a result that is fundamentally unfair in light of governing law.” Smith v. Lynch, 2015 WL 4324167, *3 (D.D.C.). See also In re Green Goblin, Inc., 2012 WL 1971143, *1 (Bankr. E.D. Pa. May 31, 2012) (“In order for a court to reconsider a decision due to ‘manifest injustice, ' the record presented must be so patently unfair and tainted that the error is manifestly clear to all who view it.”) (quoting In re Roemmele, 466 B.R. 706 (Bankr. E.D. Pa. 2012)). Rule 59(e) does not allow a losing party to “revisit issues already addressed or advance arguments that could have been raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012.

         B. Discussion

         1. Oldcastle's Failure to Respond to Each of Kraft's Arguments

         As an initial matter, Kraft notes that Oldcastle does not dispute all of the arguments raised in the Motion for Reconsideration. Kraft argues that Oldcastle, therefore, must agree with those arguments. See D.N.M. LR-Cv 7.1(b) (failure to file response “constitutes consent to grant the motion.”). However, the Tenth Circuit prefers that the Court address the merits of a motion. See Lee v. Max Int'l, LLC, 638 F.3d 1318, 1321 (10th Cir. 2011) (“our legal system strongly prefers to decide cases on their merits.”). In keeping with that Tenth Circuit tenet, the Court can waive a local rule “to avoid injustice, ” i.e., decide a motion on the merits. D.N.M. LR-Cv 1.7. Moreover, it is clear from Oldcastle's response that it does not consent, in any respect, to the Motion for Reconsideration. The Court, therefore, will decide the Motion for Reconsideration entirely on its merits.

         2. Oldcastle's Failure to Serve the Oldcastle Motion on Kraft

         Kraft also contends that the Court should reconsider the Order because Oldcastle did not serve the Oldcastle Motion on Kraft and so Kraft did not have an opportunity to respond to that motion. Kraft asserts in a December 11, 2017, declaration, attached to the Motion for Reconsideration, that he became aware of the Oldcastle Motion only when on December 4, 2017, the Court emailed him its Order ruling on that motion. (Doc. 200) at 16, ¶ 5. Kraft contends that this assertion in the declaration is new evidence not available previously and supports granting the Motion for Reconsideration. (Doc. 223) at 9.

         The Court acknowledged in its Order that Oldcastle did not serve the Oldcastle Motion on Kraft, but noted that “[b]ecause Rune Kraft has continued to file matters in his case, after Oldcastle filed its Motion, the Court concludes that Rune Kraft has had access to the docket sheet, and has had an opportunity to see the Motion and to respond to it.” (Doc. 188) at 1. Nonetheless, the Court construed the Oldcastle Motion, not as a motion, but as a response to various motions filed by Kraft.[3] Id. The Court further acknowledged that “[e]ven if Rune Kraft is unaware of [the Oldcastle] Motion, the matters Oldcastle raises in the Motion are matters which the Court would have addressed in deciding Rune Kraft's motions had Oldcastle simply not responded.” Id. at 1-2. The Court then observed in footnote 1 that “[a]lthough the Local Rules provide that a failure to respond to a motion constitutes consent to the motion, the Local Rules ‘may be waived by a Judge to avoid injustice.'” Id. at 2 n.1 (citing and quoting D.N.M. LR-Cv 1.7 and 7.1(b)). The Court, therefore, considered that Kraft may not have been aware of the Oldcastle Motion. Hence, Kraft's statement in his declaration that he was unaware of Oldcastle's Motion until he received the Order does not constitute new evidence upon which to grant the Motion for Reconsideration.

         Even construing the Oldcastle Motion as a response to Kraft's motions, Kraft appears to argue that the Court committed clear error and acted in a manifestly unjust manner when it ruled on the Oldcastle Motion without affording Kraft an opportunity to reply to that motion. The Court analyzes whether denying Kraft that opportunity to reply was harmless error under Fed.R.Civ.P. 61. Rule 61 provides that “[a]t every stage of the proceeding the court must disregard all errors and defects that do not affect any party's substantial rights.”

         Kraft has not shown that a reply would have changed the outcome of the Court's Order. Consequently, Kraft has not demonstrated that his inability to file a reply has affected any substantial rights. Cf. United States v. Cooper, 680 Fed.Appx. 844, 848 n. 3 (11th Cir. 2017) (holding under Fed. R. Crim P. 52(a), a criminal rule analogous to Rule 61, that court's ruling before receiving reply was harmless error not affecting substantial rights because defendant did not show reply “would have changed the outcome.”). Additionally, Kraft has not cited authority that requires a court to “require more briefing on a motion that has no chance of success.” Ibeagwa v. I.R.S., 2015 WL 3791538, at *1 (W.D. Wis.). Ruling prior to receiving any reply to the Oldcastle Motion, therefore, was at most harmless error and is not a basis for granting the Motion for Reconsideration. See Tawfilis v. Allergan, Inc., 2015 WL 9982762, at *2 (C.D. Cal.) (“a motion to reconsider should not be granted where an error is found to be harmless.”).

         3. Lack of Personal and Subject ...

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