United States District Court, D. Colorado
DELMART E.J.M. VREELAND, II, Plaintiff,
THOMAS C. FISHER, MD, Defendant.
A. BRIMMER United States District Judge.
matter is before the Court on the plaintiff's Motion for
Relief from Judgment Pursuant to Fed.R.Civ.P. Rule 60 [Docket
No. 384], Motion for Leave to Supplement Complaint After
Summary Judgment [Docket No. 387], and Motion for Leave to
Exceed Page Limits and to Attach Exhibits to Plaintiff's
Supplemental Prisoner Complaint [Docket No. 386].
Court entered summary judgment in favor of the last remaining
defendant, Dr. Thomas Fisher, on March 29, 2016. Docket No.
359. The same day, the Court ordered production of the
attachments to certain emails to defendant's expert
witness Dr. Tiona and stated that, if “the attachments
that defendants have not yet provided, once produced, provide
any basis for the Court to revisit its order on
defendant's motion for summary judgment, plaintiff may
file a motion for relief from judgment pursuant to
Fed.R.Civ.P. 60(b)(2).” Docket No. 360 at 11 n.5. On
April 13, 2016, the Clerk entered final judgment. Docket No.
366. On April 18, 2016, plaintiff filed his notice of appeal.
Docket No. 368.
6, 2016, while his appeal was pending, plaintiff sought
limited remand to file the motion for relief from judgment,
claiming that the motion he intended to file was contemplated
by the Court's production order. Appeal No. 16-1131, Doc.
01019633302 at 3. On June 8, 2016, the Tenth Circuit denied
his request, stating plaintiff must first seek an order from
this Court indicating that it would grant such a motion if it
had jurisdiction. Id., Doc. 01019634590 at 1; Docket
No. 384 at 33. Plaintiff then filed the present motions on
July 18, 2016. Dockets No. 384, 386, 387.
after judgment is discretionary and only appropriate for
“(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). Because such relief is
“extraordinary and may only be granted in exceptional
circumstances, ” The Servants of the Paraclete v.
John Does, 204 F.3d 1005, 1009 (10th Cir. 2000), parties
seeking relief under Rule 60(b) have a high hurdle to
overcome; a Rule 60(b) motion should not be treated as a
substitute for an appeal. Zurich N. Am. v. Matrix Serv.,
Inc., 426 F.3d 1281, 1289 (10th Cir. 2005). Rule
60(b)(6) has been described as a “grand reservoir of
equitable power to do justice in a particular case.”
Pierce v. Cook & Co., Inc., 518 F.2d
720, 722 (10th Cir. 1975) (en banc) (citation omitted).
Relief under Rule 60(b)(6) is appropriate when circumstances
are so “unusual or compelling” that extraordinary
relief is warranted or when it “offends justice”
to deny such relief. Cashner v. Freedom Stores,
Inc., 98 F.3d 572, 580 (10th Cir. 1996). Courts have granted
relief under Rule 60(b)(6) “when, after entry of
judgment, events not contemplated by the moving party render
enforcement of the judgment inequitable, ” where a
party is indigent, or when it offends justice to deny such
relief. Id. at 579; Yapp v. Excel Corp.,
186 F.3d 1222, 1231-32 (10th Cir. 1999).
motion for relief from judgment does not, as contemplated in
the Court's March 29, 2016 order, request that “the
Court [ ] revisit its order on defendant's motion for
summary judgment.” Docket No. 360 at 11 n.5. Instead,
plaintiff takes issue with certain of the Court's
conclusions leading to summary judgment, repeats his various
grievances about the discovery in the case, and concludes by
asking the Court to grant additional discovery and grant
plaintiff's motion for leave to supplement his complaint.
Docket No. 384. The only referenced email attachment is a
list of materials that defense counsel brought to the
deposition of Dr. Tiona, which included “several
notebook binders filled w/case related documents.”
Docket No. 384 at 35. Defendant admits that he was served
with and had an opportunity to review “less than 5, 000
pages” of documents, but argues this amount is
inconsistent with copying fees found in the bill of costs
that he claims show approximately 9, 000 pages of documents
for Dr. Tiona. Id. at 26-27; see also
Docket No. 323 at 10. Two copies of somewhat less than 5, 000
pages would be approximately 9, 000 pages, as defendant
points out. More to the point, the email attachment
could not have helped plaintiff avoid summary judgment and he
does not otherwise present new evidence that judgment was
inequitable. See Docket No. 360 at 11. Accordingly,
the Court would not grant relief even if it had jurisdiction
to do so. Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56, 58 (1982) (“The filing of a notice of
appeal is an event of jurisdictional significance-it confers
jurisdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved
in the appeal.”). To the extent plaintiff disputes the
conclusions reached by this Court in entering judgment, his
appeal offers the proper forum.
judgment is entered, “the filing of an amended
complaint is not permissible until judgment is set aside or
vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b).”
Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985)
(citing 6 C. Wright & A. Miller, Federal Practice and
Procedure § 1489 (1971); Ondis v. Barrows, 538
F.2d 904, 909 (1st Cir. 1976); Wilburn v. Pepsi-Cola
Bottling Co. of St. Louis, 492 F.2d 1288, 1290 (8th Cir.
1974); Knox v. First Sec. Bank of Utah, N.A., 206
F.2d 823, 826 (10th Cir. 1953)). Therefore, the Court would
not grant plaintiff's motion to supplement his complaint
or the related motion for excess pages.
foregoing reasons, it is
that plaintiff's Motion for Relief from Judgment Pursuant
to Fed.R.Civ.P. Rule 60 [Docket No. 384] is DENIED for lack
of jurisdiction. It is further
that plaintiff's Motion for Leave to Exceed Page Limits
and to Attach Exhibits to Plaintiff's Supplemental
Prisoner Complaint [Docket No. 386] is DENIED as moot. It is
that plaintiff's Motion for Leave to Supplement Complaint
After Summary Judgment [Docket No. 387] is DENIED as moot.
Notably, this is also an amount that
would fit in several binders. Defendant states that duplicate
copies were made to provide a copy for plaintiff, the one he
admits to ...