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 DENYING MOTION TO
MATTER comes before the Court on Plaintiff’s
Motion to Reconsider [sic] Memorandum Opinion [sic] and Order
8/20/2018 and Request for Documentation, filed August 31,
2018 (Doc. 14)(“Second Motion to Reconsider”).
Plaintiff Kerry Kruskal appears pro se. For the reasons set
out below, the Court will deny Kruskal’s Second Motion
September 29, 2016, Kruskal filed suit in federal court
requesting relief from a state court decision. See
Notice of Appeal -- Complaint to Send N.M. Supreme Court
Decision Back to State at 1-3 (Doc.
1)(“Complaint”). In 2015, the Eighth District
Court, County of Taos, State of New Mexico, ruled on a
contract dispute involving Kruskal, 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 e-mail. See CM/ECF Pro Se
Notification Form at 1, filed September 29, 2016 (Doc.
3)(“Pro Se Form”).
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
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 its
Final Judgment on November 30, 2016. See Final
Judgment at 1, filed November 30, 2016 (Doc. 8). On November
30, 2017, the Court electronically emailed Notices of
Electronic Filing of the Dismissal Order and the Final
Judgment to the email address Kruskal provided in his CM/ECF
Pro Se Notification Form. See Pro Se Form at 1.
Kruskal did not file a notice of appeal.
then 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 ¶ 1, 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 ha[d] not been met.” Memorandum
Opinion and Order Denying Motion to Reopen Case at 4, filed
January 3, 2018 (Doc. 10)(“Order Denying Motion to
Reopen”). To reopen the time to appeal, the Court must
(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 Final
Order Denying Motion to Reopen at 3-4.
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 11/30/2015.”
Motion to Reconsider at 3. 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.
Court denied Kruskal’s Motion to reconsider noting that
“Kruskal consented in writing to receive notifications
by email, ” and “Kruskal was timely served notice
of the entry of judgment -- the same day the judgment was
entered.” Memorandum Opinion and Order, filed August
18, 2018 (Doc. 13)(“Order Denying
Reconsideration”). The Court concluded that
“Kruskal received proper notice under rule 77(d) of the
Federal Rules of Civil Procedure, and he has not shown any
new evidence that is relevant to the appellate rule 4(a)(6)
prerequisite for reopening the time to appeal.” Order
Denying Reconsideration at 20.
now asks the Court to reconsider its Order Denying
Reconsideration and states he is “perplexed that the
court computer expert appears to so readily be able to find
the delivery receipt, but will not confirm that there is no
read receipt.” Second Motion to Reconsider at 1.
“Kruskal requests that this court make the logs from
the federal email system available to Kruskal (and/or his
expert) such that Kruskal can prove that he never opened the
emails.” Second Motion to Reconsider at 1.
REGARDING MOTIONS TO RECONSIDER
where the Federal Rules of Civil Procedure specify, motions