United States District Court, D. Colorado
THOMAS R. ANTHONY, Plaintiff,
CITY AND COUNTY OF DENVER, and ANTHONY SANDOVAL, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge
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
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;
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.].
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].
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).
Motion for Reconsideration
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).
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
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 ...