United States District Court, D. New Mexico
Kruskal Arroyo Seco, New Mexico Plaintiff pro se
Martinez Diana Martinez Defendants pro se
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiff's
Motion to Reconsider Request to Reopen Memorandum Opinion
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.
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”).
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 ,
1167-68 [(D.N.M. 2012)(Browning, J.)](stating that the
Rooker-Feldman 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 , 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”).
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
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.
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
(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
MOO at 3-4, 2018 WL 279751, at *2.
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 did in fact arrive on
11/30/201.” 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.
REGARDING MOTIONS TO RECONSIDER
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).
Motions for Reconsideration Under Rules ...