United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S
MOTION TO ALTER THE MAY 14, 2019 JUDGMENT PURSUANT TO FED. R.
CIV. P. 59(E)
WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiffs Motion to Alter the
May 14, 2019 Judgment Pursuant to Fed.R.Civ.P. 59(e) [Doc.
28], filed on June 11, 2019. The Motion is not well-taken and
will be denied.
pro se, Plaintiff filed his original Complaint against
Defendants on January 17, 2018. [Doc. 1] at 1. However,
attorney Jason Montclare entered an appearance on behalf of
Plaintiff on August 14, 2018. [Doc. 17]. Shortly thereafter,
on August 16, 2018, the magistrate judge, the Honorable
Stephan M. Vidmar, issued an Order to Amend Complaint and for
Service of Process. [Doc. 18]. Judge Vidmar found several
deficiencies in the original pro se Complaint and gave
Plaintiff 30 days to file an amended pleading with the
benefit of his counsel. Id. at 1.
Judge Vidmar explicitly ordered Plaintiff to address the
issue of service of process. Id. at 2. He gave
Plaintiff two options: one, serve Defendants himself, or two,
request that the Court effect service under 28 U.S.C. §
1915. Id. Judge Vidmar went on to specify that if
Plaintiff wanted the Court effect service, he would be
required to make a request in writing and to provide
Defendants' addresses at the time Plaintiff filed his
amended complaint. Id.
counsel failed to timely respond to Judge Vidmar's Order
to Amend Complaint and for Service of Process. The deadline
was September 17, 2018, but Plaintiffs counsel filed nothing
by that date. On September 18, however, one day late,
Plaintiffs counsel moved for an extension of time (until
October 17, 2018) to amend the Complaint. [Doc. 21]. The
motion made no mention of service on Defendants. Id.
Judge Vidmar granted the extension, [Doc. 22], and on October
17, 2018, Plaintiff filed his Amended Complaint, naming the
same Defendants as were identified in the original Complaint.
Compare [Doc. 23] (Amended Complaint), with
[Doc. 1] (original Complaint). Plaintiff neither requested
that the Court serve Defendants, nor provided their
addresses, nor mentioned service when he amended his
Complaint. See [Doc. 23].
than six moths passed, during which time Plaintiff took no
action on the record. On April 19, 2019, Judge Vidmar ordered
Plaintiff to show cause no later than May 10, 2019, why the
action should not be dismissed without prejudice for lack of
service. [Doc. 24]. May 10 came and went, and Plaintiff
failed to respond in any way. Accordingly, the Court
dismissed the action without prejudice on May 14, 2019. [Doc.
25]. Within hours, Plaintiff filed his Motion for Relief from
Order of Dismissal [Doc. 26] ("Rule 60(b) Motion").
Rule 60(b) Motion
Rules 60(b)(1) and 60(b)(6) of the Federal Rules of Civil
Procedure, Plaintiff asked the Court for "relief from
the Order of Dismissal," including 14 days to effect
service of process Id. at 2. Plaintiff explained
that Judge Vidmar's Order to Show Cause
"inadvertently did not come to the attention" of
his counsel. Id. Next, counsel argued that
"representation of. . . Plaintiff, and identification
of. . . Defendants, [wa]s made difficult by . . . Plaintiffs
acute mental illnesses and incarceration." Id.
Finally, he argued that further time would allow the case to
be decided on the merits and would not prejudice Defendants.
Id. On those bases-and none other-counsel urged that
his "neglect [should be deemed] excusable."
Id. The Motion was denied. [Doc. 27].
case had been dismissed for lack of service, but Plaintiff
offered no explanation as to how the lack of service
resulted from his counsel's overlooking the Order to Show
Cause. Counsel explained why he failed to respond to the
Order to Show Cause (he said it inadvertently did not come to
his attention), but not why he failed to serve Defendants. He
explained that there was difficulty in representation due to
Plaintiffs illnesses and incarceration. However, that did not
address why counsel failed to serve Defendants for more than
six months after naming them in the Amended Complaint in
October of 2018. Although the Court prefers to resolve cases
on the merits, that factor is present in every case. Here,
the Court found that Plaintiff had failed to overcome the
"high hurdle" faced by movants under Rule 60(b).
Id. at 3 (citing Zurich N. Am. v. Matrix Serv.,
Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)). Plaintiff
had failed to show the "exceptional circumstances"
required for relief under the Rule. Id. (citing
Servants of the Paraclete v. Does, 204 F.3d 1005,
1009 (10th Cir. 2000) (quoting Bud Brooks Trucking, Inc.
v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th
Cir. 1990))). Accordingly, the Court denied Plaintiff s Rule
60(b) Motion. [Doc. 27].
Rule 59(e) Motion
Plaintiff is trying again to undo the judgment. [Doc. 28]. He
raises the same arguments he raised in his Rule 60(b) Motion,
but this time, he relies on Rule 59. Id.
may reconsider a final decision under Rule 59(e) if the
moving party shows "(1) an intervening change in the
controlling law, (2) new evidence previously unavailable,
[or] (3) the need to correct clear error or prevent manifest
injustice." Servants of the Paraclete, 204 F.3d
at 1012. Rule 59(e) motions may be granted when "the
court has misapprehended the facts, a party's position,
or the controlling law." Id. A Rule 59(e)
motion is not intended to "allow a losing party to
rehash arguments previously addressed or to present new legal
theories or facts that could have been raised earlier."
ACE USA v. Union Pac. R.R. Co., No. 09-2194-KHV,
2011 U.S. Dist. LEXIS 141228, 2011 WL 6097138, at *1 (D. Kan.
Dec. 7, 2011) (unpublished). "A party's failure to
present its strongest case in the first instance does not
entitle it to a second chance in the form of a motion to
Plaintiffs counsel attempts to explain that he failed to
serve Defendants "due in substantial part to"
Plaintiffs mental condition and incarceration in a remote
location. [Doc. 28] at 2. He argues that the Court should not
dismiss the case because the merits have not been reached.
Id. at 3-4. Additionally, Plaintiff argues that
Defendants would not be prejudiced by granting the ...