United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court upon Rune Kraft's
“Objection and Motion for Reconsideration of Order
Entered as Document 189” (Motion for Reconsideration),
filed on December 13, 2017. (Doc. 201). Defendant Oldcastle
Precast, Inc. (Oldcastle) filed a response on December 28,
2017, and Rune Kraft (Kraft) filed a reply on January 4,
2018. (Docs. 214 and 224). Having reviewed the Motion for
Reconsideration and the accompanying briefs, the Court grants
the Motion for Reconsideration, in part, as described below.
December 4, 2017, the Court entered an “Order on Motion
to [Set] Aside Order to Show Cause (Doc. 177) and Motion for
Attorneys' Fees as Sanctions Pursuant to Rule 11 (Doc.
158)” (Order). (Doc. 189). The Court noted in the Order
that on April 12, 2017, it
entered an Order to Show Cause [OTSC] requiring Rune Kraft to
appear in person, at the Las Cruces, New Mexico, Federal
Courthouse, on June 29, 2017, “to show cause why he
should not be sanctioned, by monetary sanctions, a finding of
contempt, and/or a referral to the State Bar of New Mexico
for the unauthorized practice of law, for continuing to file
pleadings as a non-lawyer on behalf of his business
entities….” (Doc. 132) at 4.
(Doc. 189) at 1-2. The OTSC also stated that
“Kraft's failure to appear for the in-person show
cause hearing may result in additional sanctions for
disobeying a Court order….” Id. at 2
(quoting (Doc. 132) at 4).
Court further noted in the Order that it had already denied
Kraft's first motion to set aside the OTSC. Id.
The Court then denied Kraft's second motion to set aside
the OTSC (Doc. 177), which was then before the Court, and
addressed the merits of the OTSC. Id. at 7. The
Court concluded that Kraft “failed to show cause why he
should not be sanctioned for filing ‘pleadings as a
non-lawyer on behalf of his business entities.'”
Id. (quoting (Doc. 132) at 4).
the Court imposed the following sanctions under the OTSC.
First, the Court ordered that Kraft, personally, pay
reasonable attorneys' fees and costs incurred by
Oldcastle in responding to Kraft's May 22, 2017, motion
to dismiss (Doc. 154). (Doc. 189) at 7. The Court reasoned
that this sanction was justifiable under the OTSC because
Kraft unlawfully brought the motion to dismiss (Doc. 154) on
behalf of Kraft Americas L.P. (Doc. 189) at 7. Second, the
Court ordered that Kraft, personally, pay reasonable fees and
costs incurred by Oldcastle in filing its May 24, 2017,
motion for attorneys' fees and costs (Doc. 158). (Doc.
189) at 8. The Court based the second sanction on the fact
that Oldcastle brought the motion for attorneys' fees and
costs (Doc. 158), in part, because “Kraft purposefully
violated the Local Rules and several court orders by filing
documents on behalf of KAHI and Kraft Americas L.P.”
(Doc. 189) at 8.
the above sanctions imposed pursuant to the OTSC, the Court
did not decide Oldcastle's motion for attorneys' fees
and costs (Doc. 158) and denied that motion as moot. (Doc.
189) at 8. Finally, the Court acknowledged that Oldcastle did
not serve the motion for attorneys' fees and costs (Doc.
158) on Kraft, but found that the lack of service was
immaterial in light of the decision to deny the motion for
attorneys' fees and costs (Doc. 158) as moot. (Doc. 189)
now asks that the Court reconsider the Order and the
Court's imposition of sanctions under the OTSC.
Motion for Reconsideration Standard
Tenth Circuit has analyzed motions to reconsider
interlocutory orders, like this one, under Fed. R. Civ. R.
54(b) 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) 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.
initial matter, Kraft notes that Oldcastle does not directly
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 ...