United States District Court, D. Colorado
December 28, 2016
MADINA BUHENDWA, Plaintiff,
REGIONAL TRANSPORTATION DISTRICT, University Based Pass/CU Student Bus Pass, (15) BOARD OF DIRECTORS, in their official capacities, BILL JAMES, BARBARA DEADWLER, ANGIE RIVERA MALPIEDE, JEFF WALKER, CLAUDIA FOLSKA, TOM TOBIASSEN, GARY LASATER, KENT BAGLEY, JUDY LUBOW, LARRY HOY, PAUL DANIEL SOLANO, LORAINE ANDERSON, NATALIE MENTEN, BRUCE DALY, and CHARLES L. SISK, Defendants.
A. BRIMMER United States District Judge
matter is before the Court on plaintiff's Motion for
Relief Rule 60(d) for Fraud/Assault to the Court, and an
Independent Action [Docket No. 76]. Plaintif f has filed five
other motions and an objection requesting similar relief.
See Docket No. 77 (objecting to the Court's
order denying post-judgment motions); Docket No. 78
(requesting leave to address the Chief Judge of the United
States Court of Federal Claims); Docket No. 79 (requesting
leave to file an interlocutory appeal); Docket No. 88
(requesting that the Court show cause why plaintiff's
motions should not be granted); Docket No. 89 (requesting
status for pending motions); Docket No. 90 (requesting relief
pursuant to Rule 61 and 28 U.S.C. § 2111). The Court
takes those motions up in this order as well. In light of
plaintiff's pro se status, the Court construes
her filings liberally. See Haines v. Kerner, 404
U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 & n.3 (10th Cir. 1991).
MOTION FOR RELIEF UNDER RULE 60(d)
motion for relief under Federal Rule of Civil Procedure
60(d), plaintiff alleges that the defendants in this case
misrepresented facts to the Court. Docket No. 76 at 3-6,
¶¶ 11-16. Rule 60(d) states that the rule does not
limit a court's power to “set aside a judgment for
fraud on the court.” Fed.R.Civ.P. 60(d)(3).
“[O]nly the most egregious misconduct, such as bribery
of a judge or members of a jury, or the fabrication of
evidence by a party in which an attorney is implicated will
constitute a fraud on the court.” Weese v.
Schukman, 98 F.3d 542, 552-53 (10th Cir. 1996)
(quoting Rozier v. Ford Motor Co., 573 F.2d 1332,
1338 (5th Cir. 1978). Fraud on the court is construed
narrowly because it may permit a party to overturn a judgment
long after it has become final. Id. at 553
(citing Fed. R. Civ. P. 60(b)). “Intent to
defraud is an absolute prerequisite to a finding of fraud on
the court.” Id.
Court finds that plaintiff has not demonstrated the requisite
intent to defraud required by Rule 60. While plaintiff
alleges that various individuals misled the Court, she does
not allege that they fabricated evidence or did more than
present legal arguments that plaintiff does not credit as
meritorious. Moreover, while plaintiff states that the
defendants “succeeded in deceiving the court, ”
Docket No. 76 at 6, ¶ 17, the Court's order
dismissing the case was based on principles of res
judicata. Docket No. 49 at 4-5. None of the allegations
of fraud raised by plaintiff relate to the court's
determination that dismissal was proper based on res
addition to her claims related to Rule 60(d), plaintiff also
argues in her motion that the Court's denial, Docket No.
75, of her previous motion under Rule 60 was “broadly
prejudicial” because the Court did not specify the
subsection of Rule 60 that governed the Court's
reasoning. Docket No. 76 at 3, ¶ 9-10. The order
dismissing the case stated that relief under “Fed. R.
Civ. P. 60(b)(6)” was an improper vehicle to
“cure problems of lack of notice.” Docket No. 75
at 4. Thus, the Court's order did, in fact, specify the
subsection of Rule 60.
OBJECTION TO THE COURT'S ORDER DENYING RELIEF UNDER RULE
objects to the Court's December 3, 2015 order, Docket No.
75, denying relief under Federal Rule of Civil Procedure 60
and denying her post judgment motions. Docket No. 77. Because
plaintiff appears to be seeking reconsideration of that
order, the Court will liberally construe her objection as a
motion for reconsideration.
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration. See Hatfield v. Bd. of
County Comm'rs for Converse County, 52 F.3d 858, 861
(10th Cir. 1995). Instead, motions for reconsideration fall
within a court's plenary power to revisit and amend
interlocutory orders as justice requires. See Paramount
Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d
1088, 1090 (10th Cir. 1980) (citing Fed.R.Civ.P. 54(b));
see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would
attend the repeated re-adjudication of interlocutory orders,
judges in this district have imposed limits on their broad
discretion to revisit interlocutory orders. See, e.g.,
Montano v. Chao, No. 07-cv-00735-EWN-KMT, 2008 WL
4427087, at *5-6 (D. Colo. Sept. 28, 2008) (applying Rule
60(b) analysis to the reconsideration of interlocutory
order); United Fire & Cas. Co. v. McCrerey &
Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL
1306484, at *1-2 (D. Colo. May 3, 2007) (applying Rule 59(e)
standard to the reconsideration of the duty-to-defend order).
Regardless of the analysis applied, the basic assessment
tends to be the same: courts consider whether new evidence or
legal authority has emerged or whether the prior ruling was
clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or
supporting facts which were available at the time of the
original motion.” Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
objection does not present any new evidence or newly
established legal authority. Instead, she details her efforts
to figure out why she did not receive notice of entry of
judgment in this case and provides information regarding
issues with mail service in her neighborhood. Docket No. 77
at 3-7, ¶¶ 7-15. Plaintiff's proffered evidence
does not suggest clear error on the part of the Court. In its
prior order, the Court took plaintiff at her word that she
did not receive notice of entry of judgment in this case.
Docket No. 75 at 4. Plaintiff argues that because service was
ineffective under Rule 5, “[t]he court is unfairly
denying the plaintiff, due process, right to appeal for
something beyond her control.” Id. at 7,
¶ 15. As an initial matter, service to plaintiff was
likely effective under Rule 5. Fed.R.Civ.P. 5(b)(2)(C)
(service can be made by “mailing it to the person's
last known address - in which event service is complete upon
mailing”). Nevertheless, the Court previously noted
that “[t]he Tenth Circuit has held that ‘the
specificity of [Fed. R. App. P.] 4(a)(6) and [Fed. R. Civ.
P.] 77(d) precludes the use of Fed.R.Civ.P. 60(b)(6) to cure
problems of lack of notice.'” Docket No. 75 at 4
(quoting Clark v. Lavallie, 204 F.3d 1038, 1041
(10th Cir. 2000)).
Court finds that plaintiff has offered no proper grounds for
reconsideration of the Court's December 3, 2015 order.
MOTIONS FOR INTERLOCUTORY APPEAL UNDER 28 U.S.C. §
798(b) and 28 U.S.C. § 1292(d)(2)
requests leave to address the Chief Judge of the Court of
Federal Claims pursuant to 28 U.S.C. § 798(b) and 28
U.S.C. § 1292(d)(2), Docket No. 78, and leave to apply
for an interlocutory appeal under those statutes. Docket No.
79. Neither of those statutes applies to this case or to this
circumstance. Under 28 U.S.C. § 798(b),
[T]he chief judge of the Court of Federal Claims may issue an
order authorizing a judge of the court to conduct proceedings
. . . in a foreign country whose laws do not prohibit such
proceedings, except that an interlocutory appeal may be taken
from such an order pursuant to section 1292(d)(2) of this
title, and the United States Court of Appeals for the Federal
Circuit may, in its discretion, consider the appeal.
28 U.S.C. § 798(b). Under 28 U.S.C. § 1292(d)(2),
an interlocutory order entered under 28 U.S.C. § 798(b)
or an interlocutory order issued by any judge of the United
States Court of Federal Claims may be appealed within ten
days of the entry of such an order under limited
statutes discussed by plaintiff do not apply to the facts
here. The Chief Judge of the Court of Federal Claims has not
entered an order authorizing a judge to conduct proceedings
in a foreign country, nor has any judge of the United States
Court of Federal Claims entered an interlocutory order. As
such, plaintiff's motions, even liberally construed, do
not present any grounds for relief.
MOTION FOR RELIEF UNDER RULE 61 AND 28 U.S.C. §
filed an additional motion apparently seeking relief related
to Federal Rule of Civil Procedure 61 and 28 U.S.C. §
2111, both of which discuss harmless error. Docket No. 90.
Plaintiff does not specify how those authorities provide for
relief related to this case. Plaintiff's motion details
alleged fraud by counsel for defendants, id. at 3-8,
¶¶ 6-21, error in the Court's order dismissing
the case, id. at 8-9, ¶¶ 22-23, and
defective notice of the entry of judgment. Id. at
10-11, ¶ 25-27.
motion is best construed as a motion for reconsideration
because it appears to ask the Court to reexamine the bases
for its prior orders. As noted above, reconsideration is
appropriate where new evidence or legal authority has emerged
or the prior ruling was clearly in error. Plaintiff does not
cite any legal authority that has emerged since the case was
decided. Nor does plaintiff offer any evidence that was
unavailable at the time of the Court's prior rulings. As
such, the Court finds that reconsideration of the Court's
prior orders is unjustified.
has two additional motions pending before the Court.
Plaintiff requests that the Court show cause why the motions
before the Court should not be granted, Docket No. 88, and
Plaintiff requests information regarding the status of all
motions pending before the Court. Docket No. 89.
motion requesting a showing of cause consists of a single
paragraph stating that plaintiff “respectfully requests
that this court show cause why these Motions should not be
granted since a ruling procured through fraud is not a true
ruling at all, no time limits apply.” Docket No. 88 at
3, ¶ 6. The Court has addressed the outstanding motions
before the Court in this order and has shown why
plaintiff's requested relief is inappropriate.
plaintiff's request for a status on the motions pending
before the Court is now largely moot given this order.
However, the Court notes that plaintiff lists sixteen
outstanding motions before the Court, many of which have been
previously resolved. See Docket No. 75.
FUTURE FILING RESTRICTIONS
judgment was entered in this case on March 12, 2015. Docket
No. 50. Since the entry of final judgment, plaintiff has
filed a number of motions. See Docket Nos. 51, 53,
54, 57, 58, 61, 62, 66, 71, 73, 76, 77, 78, 79, 88, 89, 90.
Def endants in this matter have filed a number of responses
to plaintiff's post-judgment motions. Docket Nos. 52, 59,
60, 65, 70, 74, 80, 81, 82, 83, 91, 92, 93. None of
plaintiff's motions has presented meritorious grounds for
courts have the inherent power to regulate the activities of
abusive litigants by imposing carefully tailored restrictions
in appropriate circumstances. Andrews v. Heaton, 483
F.3d 1070, 1077 (10th Cir. 2007) (citing Sieverding v.
Colo. Bar Ass'n, 469 F.3d 1340, 1343 (10th Cir.
2006); Tripati v. Beaman, 878 F.2d 351, 352 (10th
Cir. 1989). Injunctions restricting further filings are
appropriate where the litigant's lengthy and abusive
history is set forth and the litigant receives notice and an
opportunity to oppose the court's order before it is
order will put plaintiff on notice that, in the event
plaintiff files meritless motions or requests in the future,
the Court will impose filing sanctions against plaintiff.
See Judd v. Univ. of New Mexico, 1998 WL 314315
(10th Cir. Jun. 2, 1998) (unpublished).
that plaintiff Madina Buhendwa's Motions for Relief
[Docket Nos. 76, 77, 78, 79, 90] are DENIED. It is further
that plaintiff's motions requesting the Court provide
information regarding outstanding motions in this case
[Docket Nos. 88, 89] are DENIED as moot.