United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO RECONSIDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant's Motion to
Alter, Amend and/or Set Aside Order [Doc. 29], with
supporting Memorandum [Doc. 30], filed on March 4, 2019.
Plaintiff responded on March 7, 2019. [Doc. 31]. Defendant
replied on March 21, 2019. [Doc. 41]. The parties consented
to have the undersigned conduct dispositive proceedings in
this matter. [Doc. 17]. The Court, having considered the
briefing and the relevant law, and being otherwise fully
advise in the premises, finds that the Motion is not
well-taken and shall be DENIED.
Big Chief Plant Services, LLC (“Big Chief”)
agreed to perform contractor's services on two properties
owned by Third-Party Defendant 3 Bear Delaware Operating-NM,
LLC (“3 Bear”). [Doc. 18] at 2; [Doc. 8] at 5.
Plaintiff hired Defendant Panhandle Maintenance, LLC as its
painting subcontractor for the projects, including one
project at the “Outland location.” [Doc. 8] at
5. Plaintiff refused to pay Defendant on the grounds that
Defendant had overbilled for its services. Id. at
5-6. Defendant filed a mechanics' and materialmen's
lien on the Outland property on October 19, 2018.
Id. at 6, 11; see [Doc. 18] at 13-15. The
County Clerk of Lea County recorded the lien on the same
date. [Doc. 18] at 13.
sued Defendant in New Mexico state court on November 20,
2018. [Doc. 1] at 4. Defendant removed to federal court based
on diversity jurisdiction on December 27, 2018 and filed an
Amended Notice of Removal on January 9, 2019. Id. at
1-2; [Doc. 8] at 1. Plaintiff asserts several claims arising
from Defendant's alleged overbilling, including breach of
contract, unjust enrichment, and violations of the New Mexico
Unfair Practices Act. [Doc. 8] at 8-10. Defendant, in turn,
has counterclaimed against Plaintiff for Plaintiff's
failure to pay the disputed invoices. [Doc. 3] at 3-5.
Mexico law allows either the owner of the property at issue
or an original contractor having a contract with that owner
to petition the court for an order cancelling a lien.
Plaintiff filed a petition requesting cancellation of the
mechanics' and materialmen's lien (“the
Petition”), [Doc. 8] at 10-11, alleging that it had
statutory authority to do so because it was the original
contractor on 3 Bear's property. [Doc. 18] at 4.
Plaintiff advanced four substantive arguments for why the
Court should cancel the lien. Id. at 4-7. In its
Response to the Petition, Defendant advanced only one
argument: that Plaintiff lacked the statutory authority to
move to cancel the lien because it was not the owner of the
underlying property. [Doc. 18-1] at 1-2. Defendant disputed
neither Plaintiff's status as an original contractor nor
the substance of the Petition. See Id. In its Reply,
Plaintiff again maintained that it was an original
contractor. [Doc. 18-2] at 3. Defendant never requested leave
to file a surreply. The Court granted Plaintiff's
Petition on February 4, 2019, finding that Plaintiff had the
statutory authority to move to cancel the lien. [Doc. 20] at
3-4. Defendant filed the instant Motion on March 4, 2019.
now argues that the Court should “reconsider” its
February 4, 2019 Memorandum Opinion and Order (the
“Order”) under Federal Rules of Civil Procedure
59(e) and 60(b). [Doc. 29] at 1; [Doc. 30] at 7. It argues
that a different company-Valerus Field Solutions LP-was the
original contractor for the Outland location. [Doc. 30] at 3;
see [Doc. 18-1] at 4. Defendant also argues that,
had it contested the merits of the Petition, it would have
prevailed. Id. at 5-8, 10-12. The Court rejects each
of Defendant's arguments.
Motion is properly construed under Rule 59(e). The Federal
Rules of Civil Procedure do not recognize motions for
reconsideration. Ysais v. Richardson, 603 F.3d 1175,
1178 n.2 (10th Cir. 2010). Instead, a party seeking
reconsideration of an order may file a motion to alter or
amend judgment pursuant to Rule 59(e) or a motion seeking
relief from judgment under Rule 60(b). Id. (citing
Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991)). A motion for reconsideration filed within
28 days of the challenged order must be construed under Rule
59(e). Hinzo v. N.M. Dep't of Corr., No.
10-cv-0506 JB/CG, 2012 WL 13081961, at *1 n.2 (D.N.M. May 29,
2012). As Defendant filed its Motion on March 4, 2019-exactly
28 days after the Court's February 4, 2019 Order-the
Court construes it under Rule 59(e).
59(e) allows a party to move to alter or amend a judgment.
Fed.R.Civ.P. 59(e). But the judgment must be a final
judgment. United States v. City of Albuquerque, No.
14-cv-1025 RB/SMV, 2018 WL 4815541, at *1 (D.N.M. Oct. 3,
2018); see N.M. Health Connections v. U.S. Dep't of
Health & Human Servs., 340 F.Supp.3d 1112, 1149
(D.N.M. 2018). “Finality is judged by the standards
applicable to determining [appellate] jurisdiction under 28
U.S.C. § 1291.” Wheeler Mach. Co. v. Mountain
States Mineral Enters., Inc., 696 F.2d 787, 789 (10th
Cir. 1993) (per curiam). Section 1291 states that
“[t]he courts of appeals . . . shall have jurisdiction
of appeals from all final decisions of the district courts of
the United States.” 28 U.S.C. § 1291 (2018).
“A final decision [under § 1291] must dispose of
all claims by all parties, except a decision may otherwise be
considered final if it is properly certified as a final
judgment under Federal Rule of Civil Procedure 54(b).”
New Mexico v. Trujillo, 813 F.3d 1308, 1316 (10th
Cir. 2016). Therefore, an order is final only if § 1291
and Rule 54(b) classify it as such. Id.
Rule 54(b), if the court does not expressly state in its
order deciding one (but not all) of the plaintiff's
claims that “there is no just reason to delay”
entering final judgment on the claim, then the order is not
considered a final judgment. Fed R. Civ. P. 54(b). Rather, it
is an interlocutory order. See State Nat'l Ins. Co.
v. Cty. of Camden, 824 F.3d 399, 406 (3d Cir. 2016)
(holding that the district court's order dismissing one
defendant, but not all of them, “was not a final order
. . . it was an interlocutory order that was not immediately
appealable unless the District Court certified it under Rule
54(b), which it refused to do”); Interstate Power
Co. v. Kan. City Power & Light Co., 992 F.2d 804,
807 (8th Cir. 1993)).
case, Rule 59(e) offers no relief from the Order. The Court
did not expressly certify the Order as final under Rule
54(b). Plaintiff and Defendant have other claims pending
after cancellation of the lien. See [Doc. 1-1] at
8-10. The Order therefore is not a final judgment or order
under § 1291 and Rule 54(b); it is an interlocutory
order. As Rule 59(e) offers no relief from interlocutory
orders, the Court will deny Defendant's Motion.
Rule 59(e) applied to the Order, Defendant's Motion would
fail on the merits. “Grounds warranting a [Rule 59(e)]
motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and
(3) the need to correct clear error or prevent manifest
injustice.” Servants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). Courts should not grant
relief under Rule 59(e) where the movant seeks only to
“revisit issues already addressed or advance arguments
that could have been raised in prior briefing.”
Id. (citing Van Skiver, 952 F.2d at 1243).
Defendant does not argue that there has been an intervening
change in the controlling law, so the issue is whether either
of the other two grounds are present here.
incorrectly contends that new evidence has surfaced in the
form of (1) an “Affidavit of Release and Payment of
Debts and Claims, ” and (2) an affidavit from
Defendant's employee, Edward Rodriguez. [Doc. 30] at 3-5.
Defendant believes that these documents prove that Plaintiff
was not an original contractor but, rather, a subcontractor,
thereby eliminating Plaintiff's alleged statutory
authority to move to cancel the lien. Id.;
see [Doc. 30-1] at 7. These documents are not
“new” evidence. “When supplementing a Rule
59(e) motion with additional evidence, the movant must show .
. . that the evidence is newly discovered [and] if the
evidence was available at the time of the decision being
challenged, that counsel made a diligent yet unsuccessful
effort to discover the evidence.” Grynberg v.
Ivanhoe Energy, Inc., 490 Fed.Appx. 86, 101 (10th Cir.
2012) (unpublished) (alteration in original) (quoting
Comm. for the First Amendment v. Campbell, 962 F.2d
1517, 1523 (10th Cir. 1992)). First, the “Affidavit of
Release” was signed ...