Opinion
Civil Case No. 10-cv-02759-REB-BNB
07-27-2012
DARLEAN WOODS, Plaintiff, v. COMFORT DENTAL EAST AURORA, a Colorado profit corporation, Defendant.
Judge Robert E. Blackburn
ORDER DENYING MOTION TO APPEAL ORDER ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is Plaintiff's Motion To Appeal Order Adopting Recommendation of the United States Magistrate Judge [#73] filed July 10, 2012. Plaintiff seeks reconsideration of my order adopting the magistrate judge's recommendation to grant defendants' motion for summary judgment. ( See Order Adopting Recommendation of the United States Magistrate Judge [#68] filed May 24, 2012.) Because the motion was filed more than 28 days after the entry of the Final Judgment [#69] filed May 29, 2012, see FED. R. CIV. P. 59(b), I consider it a request for relief from judgment pursuant to Fed. R. Civ. P. 60(b). Thus construed, I deny the motion.
"[#73]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's electronic case filing and management system (CM/ECF). I use this convention throughout this order.
Relief under Rule 60(b) requires a showing of exceptional circumstances warranting relief from judgment. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). A litigant shows exceptional circumstances by satisfying one or more of the grounds for relief enumerated in Rule 60(b). Id. at 1243-44. Here, the only possibly applicable ground for relief under Rule 60(b) is provided by subparagraph (6), which contemplates relief from judgment based on "any other reason that justifies relief." FED. R. CIV. P. 60(b)(6).
I perceive nothing in plaintiff's substantive motions to suggest that such extraordinary relief is warranted in this case. Although plaintiff claims that she did not receive a copy of the magistrate judge's recommendation, the docket clearly reflects that the document was mailed to her at her current address on the date it was entered. Plaintiff avers that she became aware of the recommendation on May 20, 2012, but "[b]y the time [she] tried to object or respond to the recommendations [sic]she had already received the Adopting Order." If plaintiff was in fact diligently crafting a response to the recommendation thereafter, it is not clear why she did not file the instant motion until more than 45 days after the entry of my order.
Under the Federal Rules of Civil Procedure and the Local Rules of this District, any objections to the magistrate judge's recommendation, filed April 25, 2012, were due 17 days later by no later than May 12.
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Finally, nothing in plaintiff's motion demonstrates that the decision to grant defendant's motion for summary judgment was erroneous. Plaintiff's nonspecific and unsubstantiated assertions that defendants and their counsel "submitted may false statements," which accusations already were advance in her response to the motion for summary judgment, provide no basis for undermining the substantive decision of this court. See Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (noting that a motion to reconsider is not an appropriate vehicle "to revisit issues already addressed or advance arguments that could have been raised in prior briefing").
THEREFORE, IT IS ORDERED it is ordered that Plaintiff's Motion To Appeal Order Adopting Recommendation of the United States Magistrate Judge [#73] filed July 10, 2012, is DENIED.
Dated July 27, 2012, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge