Opinion
Civil Action No. 05-cv-01657-OES.
November 1, 2005
ORDER DENYING MOTION TO RECONSIDER
Plaintiff Robert W. Rosberg, Jr., filed pro se on October 24, 2005, a motion titled "Motion to Reconsider Prior Order of Dismissal." Mr. Rosberg asks the Court to reconsider and vacate the Court's Order and Judgment of Dismissal filed in this action on October 13, 2005. The Court must construe the motion to reconsider liberally because Mr. Rosberg is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons stated below, the motion to reconsider will be denied.
A litigant subject to an adverse judgment, and who seeks reconsideration by the district court of that adverse judgment, may "file either a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a motion seeking relief from the judgment pursuant to Fed.R.Civ.P. 60(b)." Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). Mr. Rosberg filed the motion to reconsider within ten days after the Order and Judgment of Dismissal. See Fed.R.Civ.P. 6(a) (time periods of less than eleven days exclude intervening Saturdays, Sundays, and legal holidays). Therefore, the Court will consider the motion to reconsider as filed pursuant to Rule 59(e). See Van Skiver, 952 F.2d at 1243.
The Court dismissed the instant action without prejudice because Mr. Rosberg failed to submit a certified copy of his trust fund account statement for the six-month period immediately proceeding this filing. The dismissal order filed on October 13, 2005, discusses in detail the reasons for the dismissal.
Upon consideration of the motion to reconsider and the entire file, the Court finds that Mr. Rosberg fails to demonstrate some reason why the Court should reconsider and vacate the order to dismiss this action. The three major grounds that justify reconsideration are: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Shields v. Shetler, 120 F.R.D. 123, 126 (D. Colo. 1988). Mr. Rosberg does not allege the existence of any new law or evidence and he fails to convince the Court of the need to correct clear error or prevent manifest injustice. Therefore, the motion to reconsider will be denied. Accordingly, it is
ORDERED that the motion titled "Motion to Reconsider Prior Order of Dismissal" that Plaintiff Robert W. Rosberg, Jr., filed pro se on October 24, 2005, and which the Court has construed as filed pursuant to Fed.R.Civ.P. 59(e), is denied.