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United States v. Barrett

United States District Court, D. Colorado

April 21, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
CHARLES BARRETT, and KATHLEEN BARRETT, Defendants.

ORDER

R. BROOKE JACKSON, District Judge.

The Barretts move to reconsider this Court's order of January 29, 2014 declining to discharge a writ of ne exeat republica. The Court has considered the motion and response. No reply has been filed. The motion is denied.

ANALYSIS

A motion for reconsideration is not a vehicle "to revisit issues already addressed or advance arguments that could have been raised in prior briefing." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Grounds warranting reconsideration include "(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Id. In sum, "a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Does, 204 F.3d at 1012.

There are two types of motion for reconsideration. A party can file a motion to alter or amend judgment within 28 days under Fed.R.Civ.P. 59(e). After 28 days have passed, a party may seek relief from a final judgment, order, or proceeding under Fed.R.Civ.P. 60(b). In this case, the defendants filed their motion for reconsideration more than 28 days after the Order was filed.

"Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., Inc., 909 F.2d 1437, 1440 (10th Cir. 1990). "A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds for relief from judgment." Van Skiver v. United States, 952 F.2d 1241, 1243-44 (10th Cir. 1991). These six grounds are as follows:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

To begin, the motion mostly rehashes arguments that the Court has already heard, often more than once. For example, they argue that the initial default judgment against them was made in error, both procedurally (insufficient service of process) and substantively (no tax liability, or alternatively, incorrect assessment of tax liability). These arguments have been raised before. [ See e.g., ECF Nos. 108, 110, 142]. The Barretts offer no new evidence in support of these claims. The facts are that the Barretts participated in the fraudulent preparation of their ...


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