Opinion
Civil Action 21-cv-01509-PAB-NRN
11-17-2023
ZACHARIAH DOBLER, Plaintiff, v. CELIA SCHWARTZ, Defendant.
RECOMMENDATION THAT PLAINTIFF'S MOTION PURSUANT TO Fed.R.Civ.P. 60(b) (Dkt. #85) BE DENIED
N. Reid Neureiter United States Magistrate Judge
This case is before this Court pursuant to an Order (Dkt. #86) issued by Chief Judge Philip A. Brimmer referring Plaintiff's Motion Pursuant to Fed.R.Civ.P. 60(b) (Dkt. #85). 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 motion be DENIED.
The procedural background of this case has been set forth elsewhere several times and will not be repeated here. This is Plaintiff's second post-judgment motion. Chief Judge Brimmer has already denied Plaintiff's motion brought pursuant to Rule 59. (See Dkt. #79.) Plaintiff now seeks relief under Rule 60(b)(1), (2), and (6).
“On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). A party may also seek relief under Rule 60(b)(2) for “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed.R.Civ.P. 60(b)(2). Alternatively, a party may seek relief from a final judgment, order, or proceeding for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). “[A] district court may grant a Rule 60(b)(6) motion only in extraordinary circumstances and only when necessary to accomplish justice.” Kile v. United States, 915 F.3d 682, 687 (10th Cir. 2019) (internal citations and quotation marks omitted), as corrected (Feb. 15, 2019).
Plaintiff is not entitled to relief under any of these provisions. The subject motion rehashes arguments he has raised numerous times in his objection (Dkt. #57) to the Court's original Report and Recommendation (Dkt. #55), his Rule 59 motion (Dkt. #65), and his objection (Dkt. #83) to the undersigned recommendation that the motion be denied (Dkt. #78), all of which were considered and 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. 60 (Dkt. #85) 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).