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Kruskal v. Martinez

United States District Court, D. New Mexico

August 18, 2018

KERRY KRUSKAL, Plaintiff,
v.
JUAN MARTINEZ and DIANA MARTINEZ, Defendants.

          Kerry Kruskal Arroyo Seco, New Mexico Plaintiff pro se

          Juan Martinez Diana Martinez Defendants pro se

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on Plaintiff's Motion to Reconsi[]der Request to Reopen Memorandum Op[]inion and Order Denying Motion to Reopen Case, filed January 11, 2018 (Doc. 11)(“Motion to Reconsider”). Plaintiff Kerry Kruskal appears pro se. For the reasons set out below, the Court will deny Kruskal's Motion to Reconsider.

         PROCEDURAL BACKGROUND

         On September 29, 2016, Kruskal filed suit in federal court requesting relief from a state court decision. See Notice of Appeal -- Complaint to Send NM Supreme Court Decision Back to State at 1-3, filed September 29, 2016 (Doc. 1)(“Complaint”). In 2015, the Eighth Judicial District Court, County of Taos, State of New Mexico, ruled against Kruskal on a contract dispute, but the state court clerk did not send a copy of the ruling to the parties. See Complaint at 1. Kruskal appealed, but “[t]he Appellate Court refused to look into the issues raised in the appeal, stating that Kruskal had missed the 30 day deadline.” Complaint at 2. “The Supreme Court upheld the Appellate decision.” Complaint at 2. Consequently, Kruskal requested “that this Federal Court reverse the opinion of the Supreme [C]ourt, and send the appeal back down to be reviewed on the merits.” Complaint at 2. Kruskal also filed a CM/ECF Pro Se Notification Form showing that he elected to receive notification via email. See CM/ECF Pro Se Notification Form at 1, filed September 29, 2016 (Doc. 3)(“Pro Se Form”).

         In November, 2016, the Court dismissed this case without prejudice for lack of subject-matter jurisdiction stating:

Kruskal, who lost in state court by virtue of a decision which the Supreme Court of the State of New Mexico entered before the commencement of this case, asks this Court to review the correctness of the Supreme Court of the State of New Mexico's decision. See Complaint at 2. The Court does not have jurisdiction to review the Supreme Court of the State of New Mexico's decision. See Valdez v. Metro. Prop. & Cas. Ins. Co., 867 F.Supp.2d [1143], 1167-68 [(D.N.M. 2012)(Browning, J.)](stating that the Rooker-Feldman[1] doctrine requires: “(i) a state-court loser; (ii) who is asking a federal district court; (iii) to review the correctness of a judgment rendered by a state court; and (iv) which judgment was rendered before the commencement of the federal proceeding”). Kruskal does not seek any other relief, and does not allege any facts showing that this Court has subject-matter jurisdiction. See United States ex rel. General Rock & Sand Corp. v. Chuska Dev. Corp., 55 F.3d [1491], 1495 [10th Cir. 1995)] (stating that the party seeking the exercise of jurisdiction bears the burden of establishing the validity of that jurisdiction and “must allege in his pleading the facts essential to show jurisdiction”).

         Memorandum Opinion and Order of Dismissal at 7-8, 2016 WL 7246108, at *4, filed November 30, 2016 (Doc. 7)(“Dismissal Order”). The Court entered Final Judgment on November 30, 2016. See Final Judgment at 1, filed November 30, 2016 (Doc. 8)(“Final Judgment”). On November 30, 2016, the Court electronically emailed Notices of Electronic Filing of the Dismissal Order and the Final Judgment to the email address that Kruskal provided in his CM/ECF Pro Se Notification Form. See Pro Se Form at 1; Memorandum Opinion and Order Denying Motion to Reopen Case at 3, 2018 WL 279751, at *2, filed January 3, 2018 (Doc. 10)(“MOO”). Kruskal did not file a notice of appeal.

         On May 5, 2017, Kruskal asked the Court to reopen this “case such that Kruskal can appeal.” Request to Reopen Case Such That Kruskal Can Appeal the Final Judgement [sic] The Honorable James O. Browning 11/30/2016 at 2, filed May 5, 2017 (Doc. 9)(“Motion to Reopen”). Kruskal appeared to make his request to reopen the case pursuant to rule 4 of the Federal Rules of Appellate Procedure; Kruskal stated: “The record shows that Kruskal was sent two emails on 11/30/2016. They did not arrive.” Motion to Reopen ¶ 3, at 1.

         The Court denied Kruskal's Motion to Reopen, “[b]ecause the first prerequisite for reopening the time to appeal pursuant to rule 4(a)(6) of the Federal Rules of Appellate Procedure has not been met.” MOO at 4, 2018 WL 279751, at *2. To reopen the time to appeal, the Court must find:

(A) . . . that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and,
(C) . . . that no party would be prejudiced.

Fed. R. App. P. 4(a)(6). The Court stated:

The Court's investigation of the record in this case does not support Kruskal's assertion that he did not receive the Dismissal Order and the Final Judgment. The Notices of Electronic Filing of the Dismissal Order and the Final Judgment were electronically mailed to the email address that Kruskal provided. Furthermore, a systems engineer with the Court reviewed the Court's Case E-Mail Notification Tracking System archives, which show that the destination server successfully received the emails on November 30, 2016 emails to Kruskal. Kruskal offers no explanation for why he did not receive the emails. The Court concludes that Kruskal received timely notice of the Court's Dismissal Order and Final Judgment.

MOO at 3-4, 2018 WL 279751, at *2.

         In his Motion to Reconsider, which he filed on January 11, 2018, Kruskal states: “Just a couple of days ago, Kruskal went back into his own archived mail to find that the letters[2] did in fact arrive on 11/30/201[6].”[3] Motion to Reconsider at 11. Kruskal also states that he “just now opened the emails, for the very first time Kruskal sees” the notice of the Court's Order dismissing the case. Motion to Reconsider at 3. Kruskal explains that a “server problem” may have caused the emails to arrive late. Motion to Reconsider at 3.

         LAW REGARDING MOTIONS TO RECONSIDER

         Except where the Federal Rules of Civil Procedure specify, motions to reconsider fall into three categories. First, there are motions to reconsider “filed within [twenty-eight] days of the entry of judgment” and those are “treated as a motion to alter or amend the judgment under rule 59(e).” Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. 453, 462 (D.N.M. 2009)(Browning, J.). Second, there are motion to reconsider “filed more than [twenty-eight] days after judgment, ” which are “considered a motion for relief from judgment under rule 60(b).” Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. at 462. Finally, there are motions to reconsider “any order that is not final, ” which is treated as a “general motion directed at the Court's inherent power to reopen any interlocutory matter in its discretion.” Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. At 462. See Price v. Philpot, 420 F.3d 1158, 1167 & n.9 (10th Cir. 2005); Computerized Thermal Imaging, Inc. v. Bloomberg. L.P., 312 F.3d 1292, 1296 (10th Cir. 2002).

         1. Motions for Reconsideration Under Rules ...


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