Anthony v. City And County of Denver

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Nina Y. Wang United States Magistrate Judge

         This matter comes before the court on Plaintiff Thomas R. Anthony's (“Plaintiff” or “Mr. Anthony”) Motion to File Replacement Second Amended and Supplemented Complaint and Reconsider Order of Sept. 29, 2017 In Part (“Motion” or “Motion to Amend Second Amended Complaint”) [#131], referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the Federal Rules of Civil Procedure, and the Memorandum dated June 21, 2018 [#132]. This court concludes that oral argument will not materially assist in the resolution of this matter. Having reviewed the Motion and associated briefing, the applicable case law, and the entire docket, I respectfully RECOMMEND that the court DENY the Motion to Amend Second Amended Complaint.

         BACKGROUND

         The court has discussed, at length, the background of this case in prior Orders and Recommendations, see, e.g., [#80; #93; #133], and does so here only as it pertains to the instant Motion. Plaintiff initiated this action by filing his pro se Complaint on May 23, 2016. [#1]. The dispute between the Parties stems from the condemnation of a building Mr. Anthony owned located at 5001 National Western Drive (the “Property”) in Denver, Colorado. [#23]. Plaintiff asserts various constitutional claims against various Defendants because of the events leading up to and including the condemnation of the Property. See, e.g., [#1; #23; #108].

         Presently, Plaintiff's Second Amended Complaint (“SAC”) is the operative pleading. It names two Defendants-the City and County of Denver (“Denver”) and Anthony Sandoval (“Mr. Sandoval”) (collectively, “Defendants”)-and asserts claims for violations of Plaintiff's Fifth and Fourteenth Amendment rights against both Defendants and for inverse condemnation against Denver. [#108]. Mr. Anthony, through counsel, filed the SAC on January 26, 2018-a date prior to the entry of the Scheduling Order on February 21, 2018, but which the Parties stipulated to as the deadline for amendment of pleadings and joinder of parties. See [#104; #112; #113]. Defendants then moved to dismiss the SAC on February 9, 2018. [#109]. After receiving an extension of time to respond to the pending motion to dismiss, and while the motion remained pending before this court, Mr. Anthony's counsel sought leave to withdraw from continued representation in this matter. [#123; #124; #127]. The court held a motion hearing on the motions to withdraw on May 9, 2018, which Mr. Anthony attended. [#130]. During that time, this court again advised Mr. Anthony that absent extraordinary circumstances there would be no extensions of deadlines set by the Scheduling Order. [Id. at 2]. The undersigned further stated that it intended to move forward with a Recommendation on the pending motion to dismiss, but that it would not prohibit Mr. Anthony from acting on his desire to seek leave to further amend the SAC. [Id.].

         Plaintiff filed the instant Motion on June 20, 2018 [#131], and this court recommended granting Defendants' Motion to Dismiss the SAC on June 28, 2018 [#133]. Plaintiff then filed two additional motions seeking leave to amend the Scheduling Order. The undersigned denied Plaintiff's Motion to Amend or Vacate the Scheduling Order [#135], but granted in part Plaintiff's Motion to Set Back Certain Discovery Deadlines and to Correct the Record [#153], extending discovery for the sole purpose of depositions and the dispositive motions deadline for an additional month. See [#157]. All other deadlines, including the deadline to amend pleadings, remained set. See [id. at 9].

         In the instant Motion to Amend Second Amended Complaint, Mr. Anthony seeks leave to file a “Replacement Second Amended and Supplemented Complaint” (“RSASC”) as well as “for reconsideration of parts of the court's order of Sept. 29, 2017 . . . which are in error.” [#131 at 1- 2]. Defendants oppose the requested relief. [#139]. The Motion to Amend Second Amended Complaint is now ripe for recommendation. The following discussion begins with an analysis of Mr. Anthony's arguments for reconsideration followed by an analysis of his arguments for leave to amend. In doing so, this court affords Mr. Anthony's filings a liberal construction but does not act as his advocate, and applies the same substantive and procedural law to Plaintiff as a represented party. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.2 (10th Cir. 2008).

         ANALYSIS

         I. Motion for Reconsideration

         A. Legal Standard

         The Federal Rules of Civil Procedure do not expressly provide for a motion for reconsideration. Because Mr. Anthony seeks reconsideration of a non-final order, his Motion “falls within a court's plenary power to revisit and amend interlocutory orders as justice requires.” United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, No. 06-cv-00037-PAB-CBS, 2010 WL 420046, at *3 (D. Colo. Feb. 1, 2010); see also Fed. R. Civ. P. 54(b) (“[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.”). Courts in this district have applied different standards on motions for reconsideration of non-final orders. See United Fire & Cas. Co., 2010 WL 420046, at *3 (listing cases applying Rule 59(e) standard, Rule 60(b) standard, and “law of the case” standard). But as a general principle, courts may grant motions to reconsider where there is “(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.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion for reconsideration is not an avenue for a party to reargue issues by rehashing facts and arguments already addressed or available, yet neglected, in the original proceeding. See id.; Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).

         B. Application

         As far as this court can discern, Mr. Anthony's arguments for reconsideration intertwine with his arguments in support of further amendment. And while this court finds such arguments more suitable for its consideration of why Mr. Anthony seeks further amendment, see, e.g., [#152 at 3 (“My request for reconsideration is in response to an invitation to replead” (emphasis omitted)], it will consider his arguments first under the law governing reconsideration for the sake of completeness. For the following reasons, I respectfully RECOMMEND that the court DENY Mr. Anthony's request for reconsideration.

         First, Mr. Anthony argues for reconsideration of Judge Moore's Order finding as moot Plaintiff's claim that Denver condemned the Property for a private, as opposed to public, purpose. See [#131 at 5-6]. He contends that the Stipulation for Immediate Possession (the “Stipulation”), found to concede a public purpose, “was a nullity” because Denver's attorney violated one of its provisions and, thus, Mr. Anthony “disavowed” the Stipulation. [Id. at 6; #152 at 4]. He also takes issue with the court's denial of his conversion of injunctive relief to monetary relief following his loss of ownership in the Property. [Id. at 7-8]. But Mr. Anthony's arguments largely reiterate his objections to the undersigned's initial Recommendation [#80], which Judge Moore specifically addressed in his Order [#93 at 15-17 (rejecting Mr. Anthony's objections to the denial of his Motion to Convert and that his public purpose challenge was moot)]. And, although Mr. Anthony argues that the Stipulation became a “nullity” unbeknownst to the court prior to Judge Moore's Order [#93], suggesting new evidence previously unavailable, it appears that Mr. Anthony unilaterally denounced the Stipulation following the Denver District Court's granting of a ...