Opinion
Civil Action 21-cv-01509-PAB-NRN
06-02-2023
ZACHARIAH DOBLER, Plaintiff, v. CELIA SCHWARTZ, Defendant.
RECOMMENDATION THAT PLAINTIFF'S MOTION PURSUANT TO FED. R. CIV. P. 59 (DKT. #65) AND MOTION FOR LEAVE TO FILE OUT OF TIME (DKT. #67) BE DENIED
N. Reid Neureiter United States Magistrate Judge.
This case is before this Court pursuant to an Order (Dkt. ##68) issued by Chief Judge Philip A. Brimmer referring Plaintiff's Motion Pursuant to Fed. R. Civ. P 59 (Dkt. #65) and Motion for Leave to File Out of Time (Dkt. #67). The Court has taken judicial notice of the Court's file and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, it is RECOMMENDED that the subject motions be DENIED.
The procedural background of this case was set forth by the undersigned in its June 17, 2023 Recommendation for Dismissal for Failure to Prosecute and Failure to Comply with Court Orders (Dkt. #55), and Chief Judge Brimmer's Order (Dkt. #58) accepting said Recommendation and dismissing the case and need not be restated in detail here. Briefly, Plaintiff failed to serve Defendant even though he was given extensions of time to do so. Therefore, the undersigned recommended that the case be dismissed under Rule 4 of the Federal Rules of Civil Procedure. Plaintiff objected to that recommendation (see Dkt. #57), arguing that an unexpected transfer to a different correctional facility impeded his ability to effectuate service. Chief Judge Brimmer rejected that argument, finding that Plaintiff has not shown good cause for his failure to serve Defendant. Judgment entered against Plaintiff on July 22, 2022.
On October 7, 2022, Plaintiff filed the subject motions for relief under Rule 59. Then, on November 3, 2023, before those motions were ruled on, Plaintiff filed an appeal to the United States Court of Appeals for the Tenth Circuit (Dkt. #69). At Plaintiff's request for a status update (see Dkt. #74), the Court explained to him that the appeal deprived it of jurisdiction to rule on his Rule 59 motions (see Dkt. #76). On January 17, 2023, Plaintiff's appeal was dismissed as untimely (Dkt. #77), making Plaintiff's motions ripe for review.
A Rule 59 motion to amend a judgment “ must be filed no later than 28 days after entry of the judgment.” Fed.R.Civ.P. 59(e) (emphasis added). Here, judgment was entered on July 22, 2022. The subject motions were filed on October 7, 2022, more than 28 days later. The 28-day deadline is mandatory. See Fed.R.Civ.P. 6(b)(2) (“A court must not extend the time to act under Rules . . . 59(b), (d), and (e), and 60(b).”). Thus, the Court has no jurisdiction to consider Plaintiff's Rule 59 motion and is expressly prohibited from granting him leave to file such a motion out of time. Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1241 (10th Cir. 2006).
The Court does have discretion to recharacterize or convert a Rule 59(e) motion to a Rule 60(b) motion where the Rule 59(e) motion is untimely. Id. at 1242. “Relief under Rule 60(b) is discretionary and is warranted only in exceptional circumstances.” Oteng v. Golden Star Res., Ltd., No. 08-cv-01852-WYD-KMT, 2009 WL 3158145, at *1 (D. Colo. Sept. 28, 2009) (citation omitted). It is not warranted here. Plaintiff's motion largely rehashes arguments he raised in his objection that were rejected by Chief Judge Brimmer. He has not shown that any grounds exist under Rule 60(b) for altering or amending the judgment.
RECOMMENDATION
For the reasons set forth above, it is hereby RECOMMENDED that Plaintiff's Motion Pursuant to Fed. R. Civ. P 59 (Dkt. #65) and Motion for Leave to File Out of Time (Dkt. #67) be DENIED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn , 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrs. , 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).