United States District Court, D. Colorado
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 ...