United States District Court, D. New Mexico
Hans Muller, NMSURF, Santa Fe, New Mexico, and Michael C.
Compo, Compo Law Firm LLC, Miami Shores, Florida, for
A. Smith, Senior Trial Attorney, United States Department of
Justice, Environment and Natural Resources Division, John C.
Anderson, United States Attorney, and Christopher F. Jeu,
Assistant United States Attorney, Albuquerque, New Mexico,
ORDER DENYING PLAINTIFF'S MOTION FOR
Kelly, Jr. United States Circuit Judge.
MATTER is before the court on Plaintiff's Motion for
Reconsideration of the Court's Order Granting Federal
Defendants' Motion to Dismiss (ECF No. 40). Upon
consideration thereof, the court finds the motion is not well
taken and should be denied.
case arose out of a dispute between Plaintiff CNSP, Inc., and
the U.S. Forest Service over Plaintiff's desire to place
its telecommunications equipment within the Santa Fe National
Forest. Plaintiff sued the Forest Service, along with the
Service's Chief and the Supervisor of the Santa Fe
National Forest in their official capacities. Compl. (ECF No.
1). Defendants filed a motion to dismiss arguing the district
court lacked subject matter jurisdiction over Plaintiff's
claims and jurisdiction, if at all, would lie under the
Administrative Procedure Act (APA), 5 U.S.C. §§
701-706. Defs.' Mot. to Dismiss (ECF No. 14). Plaintiff
filed a response on the merits inviting the district court to
decide whether the action might proceed under the APA, and
seeking leave to amend if the court were to dismiss any of
its claims. Pl.'s Resp. to Mot. to Dismiss at 14-16 (ECF
district court referred Defendants' motion to dismiss to
the magistrate judge for proposed findings and recommended
disposition (“PFRD”). Order Referring Mot. (ECF
No. 30). The magistrate judge recommended that the court
grant Defendants' motion and dismiss the case for lack of
jurisdiction. Proposed Findings of Fact & Recommended
Disposition, CNSP, Inc. v. U.S. Forest Service, No.
1:17-cv-00814-MV-KK, 2018 WL 4258118 (D.N.M. Sept. 6, 2018)
(ECF No. 34). Plaintiff filed objections to the PFRD,
faulting the magistrate judge for not responding to its
request (in its response to the motion to dismiss) for leave
to amend and noting in the penultimate paragraph that it
intended to amend its complaint to seek relief under the APA
and would abandon its two other claims in the complaint.
Pl.'s Objections to PFRD (ECF No. 35). After the
government filed a response to the Plaintiff's
objections, ECF No. 36, Plaintiff finally filed a motion to
amend with an attached proposed amended complaint. ECF No.
37. Meanwhile, the district court acted on Plaintiff's
objections (which were fully briefed), adopted the
magistrate's PFRD, granted the motion to dismiss
Plaintiff's complaint, and denied Plaintiff's request
for leave to file an amended complaint. Order Overruling
Pl.'s Objections & Adopting Magistrate Judge's
Proposed Findings & Recommended Disposition, CNSP,
Inc. v. U.S. Forest Service, No. 1:17-cv-00814-MV-KK,
2018 WL 4674574 (D.N.M. Sept. 28, 2018) (ECF No. 38). The
district court then entered judgment. ECF No. 39.
Accordingly, Plaintiff's formal motion for leave to amend
its complaint was implicitly denied. Cf. Hill v.
SmithKline Beecham Corp., 393 F.3d 1111, 1116 (10th Cir.
then filed a motion for reconsideration arguing, in part,
that the district court never acted on its formal motion to
amend the complaint, which Defendants oppose. On June 13,
2019, the case was transferred to the undersigned. ECF No.
Plaintiff's motion for reconsideration should be denied.
The motion does not satisfy the standard established under
Federal Rule of Civil Procedure 59(e), and Plaintiff has
missed its opportunities to properly move to amend.
Servants of the Paraclete v. Does, the Tenth Circuit
explained that proper grounds for a motion for
reconsideration “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.” 204 F.3d 1005, 1012 (10th Cir. 2000). Thus,
“Rule 59(e) motions may be granted when ‘the
court has misapprehended the facts, a party's position,
or the controlling law.'” Nelson v. City of
Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019) (quoting
id.). They should not be granted, however,
where a party is using the motion for reconsideration merely
to “relitigate old matters” or to raise arguments
that could have been presented before the court entered
judgment. Exxon Shipping Co. v. Baker, 554 U.S. 471,
485 n.5 (2008).
both the facts and the applicable law were known (or should
have been known) to Plaintiff well before it filed its motion
for reconsideration. Servants, 204 F.3d at 1012. The
court did not misapprehend the applicable law - Plaintiff
did. See Pl.'s Mot. for Recons. at 2 n.1
(conceding as much). The court accepted Plaintiff's
arguments as they were presented, and those arguments did not
provide a basis for federal jurisdiction. As for the requests
for leave to amend contained in the response to the motion to
dismiss and in the objection to the PFRD, it is well settled
that such a request must be accompanied by a proposed amended
complaint and that a mere request is not sufficient.
D.N.M.LR-Civ. 15.1; Albers v. Bd. of Cty. Comm'rs of
Jefferson Cty., 771 F.3d 697, 706 (10th Cir. 2014). It
was not until after the objections to the PFRD were fully
briefed - and nine months after Defendants had alerted
Plaintiff to the obvious and critical jurisdictional defects
in the case - that Plaintiff finally moved for leave to amend
and attached a proposed amended complaint. Plaintiff has
failed to show there was any mistake in the court's
original decision dismissing this action. See
Nelson, 921 F.3d at 930; see also Combs v.
PriceWaterhouseCoopers LLP, 382 F.3d 1196, 1205-06 (10th
Plaintiff has never grappled with how granting leave to amend
would not be futile. While changing the legal theory to a
challenge under the APA might solve the jurisdictional
defect, it is not obvious that it would. See, e.g.,
Joseph W. Mead & Nicholas A. Fromherz, Choosing a
Court to Review the Executive, 67 Admin. L. Rev. 1, 10
(2015) (“While the default rule is that administrative
challenges begin in district court, Congress has provided
innumerable exceptions that allow a case to be commenced
directly in the court of appeals, bypassing the district
court altogether.”). And even if it did, it is not at
all clear that the complaint would even state a claim the
court could review. See, e.g., Olenhouse v.
Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir.
1994) (explaining the procedural distinctions between a
normal lawsuit, initiated by a complaint, and an
administrative law appeal, initiated by a petition for review
of agency action); 4 Charles H. Koch Jr. & Richard
Murphy, Administrative Law & Practice Ch. 12B,
Introduction (3d ed., February 2019 update) (detailing the
hurdles that precede judicial review of agency actions).
THEREFORE, IT IS ORDERED that Plaintiff's Motion for
Reconsideration of the Court's Order Granting Federal
Defendants' Motion to Dismiss ...