United States District Court, D. Colorado
LOWELL HEIZER, ERICA HEIZER, SCHNEIDER NATIONAL CARRIERS, INC., a Nevada Corporation, and GREAT WEST CASUALTY COMPANY, INC., a Nebraska Corporation, Plaintiffs,
KENNON DECKER and PAM DECKER, Defendants.
A. BRIMMER United States District Judge.
matter is before the Court on the Motion for Relief From and
Reconsideration of Final Judgment and to Alter or Amend
Judgment [Docket No. 39] filed by plaintiffs.
April 7, 2017, the Court ordered plaintiffs to show cause why
this case should not be dismissed due to the Court's lack
of subject matter jurisdiction. Docket No. 35. Specifically,
the Court noted two categories of defects in the
jurisdictional allegations of the complaint: plaintiffs
failed to allege domicile, as opposed to residency, for the
individual plaintiffs and defendants; and plaintiffs failed
to allege the principal places of business for the corporate
plaintiffs. Id. at 2-3. On April 12, 2017,
plaintiffs filed a response to the order to show cause.
Docket No. 36. The Court found that plaintiffs' response
to the order to show cause failed to show the domicile of the
individual plaintiffs or defendants. Docket No. 37 at 2-3.
Accordingly, plaintiffs did not meet their burden, as the
party invoking federal jurisdiction, of establishing such
jurisdiction “as a threshold matter, ” see
Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224
(10th Cir. 2004), and the Court dismissed the case without
prejudice for lack of subject matter jurisdiction. Docket No.
37. On April 18, 2017, the clerk entered final judgment.
Docket No. 38.
11, 2017, plaintiffs filed the instant motion pursuant to
Federal Rules of Civil Procedure 59 and 60, requesting that
the Court vacate its order dismissing the case. Docket No.
39. Plaintiffs state that they incorrectly believed the
evidence they submitted in response to the order to show
cause established the diversity of the parties. Id.
at 3, ¶ 9. In support of their motion for
reconsideration, plaintiffs have now submitted affidavits
demonstrating the domicile of the individual plaintiffs and
defendants. See Docket Nos. 39-2, 39-3. Plaintiffs
assert that, in light of these affidavits, jurisdiction is
proper under 28 U.S.C. § 1332(a)(1) and that allowing
defendants to bring this suit in the United States District
Court for the District of Colorado would result in judicial
economy. Docket No. 39 at 4-5, ¶ 11-12.
59 motion to alter or amend judgment must be filed no later
than 28 days after the entry of the judgment. Fed.R.Civ.P.
59(e). In this case, the final judgment entered on April 18,
2017, and plaintiffs filed their motion for reconsideration
on May 11, 2017. Accordingly, plaintiffs' motion is
timely under Rule 59. In order to succeed on a motion brought
pursuant to Rule 59, a party must show either “(1) an
intervening change in the controlling law, (2) new evidence
previously unavailable, [or] (3) the need to correct clear
error or prevent manifest injustice.” Servants of
the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000). The rule does not, however, provide a
license to revisit arguments that were already addressed or
to advance new arguments that could have been raised but were
not. Id. The decision to grant or deny a Rule 59
motion is committed to the Court's discretion. Phelps
v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
may also seek relief from a final order or judgment on the
basis of “mistake, inadvertence, surprise, or excusable
neglect” pursuant to Rule 60(b)(1). The rule
“seeks to strike a delicate balance between two
countervailing impulses: the desire to preserve the finality
of judgments and the incessant command of the court's
conscience that justice be done in light of all the
facts.” Cessna Fin. Corp. v. Bielenberg Masonry
Contracting, Inc., 715 F.2d 1442, 1444 (10th Cir. 1983)
(emphasis in original). A motion pursuant to Rule 60(b)(1)
must be filed “within a reasonable time . . . no more
than a year after the entry of the judgment.”
is entitled to relief from judgment under Rule 60(b)(1) where
“a party has made an excusable litigation
mistake.” Cashner v. Freedom Stores, Inc., 98
F.3d 572, 576 (10th Cir. 1996). Relief on the basis of
mistake is not appropriate where “the mistake was the
result of a deliberate and counseled decision by the
party” or where a party “simply misunderstands
the legal consequences of his deliberate acts.”
Id. at 577. Nor does Rule 60(b)(1) “allow a
party merely to reargue an issue previously addressed by the
court when the reargument merely advances new arguments or
supporting facts which were available for presentation at the
time of the original argument.” Id. Instead, a
party may use the rule to obtain relief from
“litigation mistakes that a party could not have
protected against, such as the party's counsel acting
without authority of the party to that party's
enumerate the materials they submitted in response to the
order to show cause and state that they “incorrectly
thought” those materials demonstrated defendants'
domicile. Docket No. 39 at 3, ¶ 9. In its order to show
cause, the Court informed defendants that “domicile,
not residency, is determinative of citizenship.” Docket
No. 35 at 2 (citing Kramer v. Sears Roebuck &
Co., 1997 WL 141175, *3 (10th Cir. Mar. 28, 1997)
(unpublished)). Despite this advisement, plaintiffs submitted
no evidence showing defendants' domicile and once again
alleged individual plaintiffs' residency. See
Docket No. 37 at 2-3 (discussing the defects). Plaintiffs
have now submitted affidavits from the individual plaintiffs
and defendants specifically alleging domicile, but do not
explain why they did not submit these affidavits in support
of their response to the order to show cause. See
Docket No. 39. In sum, plaintiffs do not show that the
evidence of defendants' domicile was “previously
unavailable” or that the failure to obtain this
evidence sooner was a litigation mistake that they could not
have protected against. See Servants of the
Paraclete, 204 F.3d at 1012; Cashner, 98 F.3d
plaintiffs have not established that they are entitled to
relief under either Rule 59 or Rule 60(b). Wherefore, it is
that the Motion for Relief From and Reconsideration of Final
Judgment and to Alter or Amend Judgment [Docket ...