United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
April 30, 2018, Plaintiff Rune Kraft filed a Motion to Set
Aside Judgment and Related Order. (Doc. 9).
2011, the United States District Court for the Central
District of California entered a judgment in favor of Inland
Concrete against Plaintiff. See Doc. 1 at 9, 12,
filed July 8, 2015, in Inland Concrete Enterprise, Inc.
Employee Stock Ownership Plan v. Kraft Americas, No.
15mc33 WJ. Inland Concrete assigned its interest in the
judgment and attorney fees to Oldcastle Precast, Inc.
See Doc. 1-1 at 1 in No. 15mc33 WJ. Attorneys for
Oldcastle Precast initiated a case in this Court, No. 15mc33
WJ, by registering the judgment from the United States
District Court for the Central District of California and
filing an application for a writ of garnishment on the ground
that CalMat Co. in Santa Fe holds or controls money and/or
property belonging to Plaintiff. See Doc. 3, filed
August 26, 2015, in No. 15mc33 WJ. The Clerk of Court for the
District of New Mexico issued a Writ of Garnishment.
See Doc. 4, filed August 27, 2015, in No. 15mc33 WJ.
initiated this case by filing a Complaint for Declaratory and
Injunctive Relief containing five causes of action.
See Doc. 1, filed March 30, 2018. The first cause of
action alleged that the Clerk of Court violated
Plaintiff's constitutional rights because the Clerk did
not serve Plaintiff with orders and motions filed in
Inland Concrete Enterprise, Inc. E.S.O.P. v. Kraft
Americas, L.P., No. 15mc33 WJ (D.N.M.)
(“Inland Concrete”), as required by the
Federal Rules of Civil Procedure.
Court dismissed the first cause of action after finding that
the Clerk of Court complied with the relevant Federal Rule of
Civil Procedure and Tenth Circuit precedent. Doc. 4 at 3,
filed April 20, 2018. Having dismissed the first cause of
action “and concluding there is no independent basis
for jurisdiction over the remaining causes of action which
would allow the Court to issue declaratory judgments, ”
the Court dismissed the case without prejudice. Doc. 4 at 5.
now moves the Court under “Fed. R. Civ. P. 60 (a, b
and/or d)” to set aside the Memorandum Opinion and
Order of Dismissal, Doc. 4, and the Final Judgment, Doc. 5.
In their Response, Defendants Jesse Clark Hatch and Stanly N.
Hatch (“Hatch Defendants”) state that
“Plaintiff has not bothered to articulate on which
subsection of Rule 60 he relies, merely claiming that the
judgment must be set aside pursuant to ‘Rule 60 (a) (b)
and/or (d).'” Doc. 11 at 3. The Hatch Defendants
then address each of the provisions of Rule 60.
Reply, Plaintiff clarifies the reasons the Memorandum Opinion
and Order of Dismissal and Final Judgment should be set
Case No.15mc33 WJ was started at this Court with orders being
issued affecting my property before notifying me.
Case No. 15mc33 WJ was started at this Court with orders
being issued affecting my property before establishing
personal jurisdiction over me.
The following statement in Doc. 4, page 4, lines 5 and 6 is
plainly false: All documents filed thereafter in No.
15mc33 WJ were served on Kraft via NEFs through CM/ECF.
Reply at 2, Doc. 12, filed May 17, 2018 (underline and
italics in original). Plaintiff also states that the Court
“misunderstood” Strong v. Laubach, 65
Fed.Appx. 206, 209 (10th Cir. 2003) and N.M.R.A. §§
1-065.2(F) and 2-802(F), which the Court cited in its
Memorandum Opinion and Order of Dismissal because that Tenth
Circuit Case and the New Mexico Rules “contain no
text that allows this Court to: (a) violate Kraft's
constitutional due process rights; (b) take actions related
to his property without first establishing personal
jurisdiction over him; (c) not serve [Plaintiff] with orders;
and (d) not serve [Plaintiff] with motions.” Reply at
Court will deny Plaintiff's Motion to set aside the
Court's Memorandum Opinion and Order of Dismissal and its
Final Judgment because Plaintiff's arguments are without
Court did not improperly issue orders affecting
Plaintiff's property before notifying Plaintiff. The
Court proceeded according to Federal Rule of Civil Procedure
69(a)(1) and Tenth Circuit precedent in No. 15mc33 WJ
when it issued the Writ of Garnishment which ordered the
Garnishee to serve Plaintiff with a copy of the Application
for Writ of Garnishment, the Writ of Garnishment, and the
Garnishee's Answer. See Oklahoma Radio Assoc. v.
Federal Deposit Ins. Corp., 969 F.2d 940, 942 (10th Cir.
1992) (“the Federal Rules of Civil Procedure have the
force and effect of a federal statute”); United
States v. Spedalieri, 910 F.3d 707, 709 n.2 (10th Cir.
1990) (“A district court must follow the ...