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Tso v. Murray

United States District Court, D. Colorado

February 20, 2019

GILBERT T. TSO, individually, and as the parent and on behalf of M.X.T., Plaintiff,
REBECCA MURRAY, individually; TANYA AKINS, individually and official capacities; SHERR PUTTMAN AKINS LAMB PC, a law firm; JEANNIE RIDINGS, individually and official capacities; KILILIS RIDINGS & VANAU PC, a law firm; RUSSELL M. MURRAY, individually; DENA MURRAY, individually; JOANNE JENSEN, individually; DAVID P. BRODSKY, individually and official capacities; ELIZABETH A. STARRS, individually and official capacities; CHARLES D. JOHNSON, individually and official capacities; ROSS B. H. BUCHANAN, individually and official capacities; DAVID H. GOLDBERG, individually and official capacities; THE COUNTY OF LAKE, ILLINOIS, and THE STATE OF ILLINOIS; MITCH MCKEE, official capacity; MONICA JACKSON, individually and official capacities; LARA DELKA, individually and official capacities; and THE CITY & COUNTY OF DENVER, COLORADO, & THE STATE OF COLORADO, Defendants.


          William J. Martínez United States District Judge

         In Plaintiff Gilbert Tso's (“Plaintiff”) latest iteration of litigation before this Court, Plaintiff moves to set aside the March 5, 2018 Order Denying Pending Motions (“Order”) (ECF No. 284) and the final judgment issued that same day (ECF No. 285) (together, “Order & Judgment”). (ECF No. 295.) While Plaintiff focuses on the Order & Judgment (ECF Nos. 284 & 285), he also seemingly seeks relief from “all orders” entered by former U.S. Magistrate Judge Shaffer and the undersigned. (ECF No. 295 at 10.) Plaintiff's “Verified Motion for Relief from Orders, Final Order and Judgment” (the “Motion”) contends that Judge Shaffer's spouse had a “consulting and advisory services whose clientele include[d] the City [&] County of Denver, ” and thus a financial interest which should have prevented Judge Shaffer from presiding in this case. (Id. at 9.) Plaintiff also erroneously contends that the undersigned's “impartiality for the entirety of the above named action . . . may be reasonably questioned” because the lawsuit originally named Denver Human Services (“DHS”) as a defendant “implicating Denver DHS'[s] executive director Don Mares, who is related to Judge Martinez and, for whom Judge Martinez sua sponte recused himself” in a separate case. (Id. at 2.)

         Plaintiff has not met the Rule 60 standard for relief from a judgment or order. Moreover, several of Plaintiff's factual contentions, and the assumptions drawn therefrom, are plainly erroneous. For those reasons, as further explained below, the Court denies the Motion.

         I. BACKGROUND

         This case has a lengthy procedural history, with which the Court presumes general familiarity. The Tenth Circuit recently set forth a summary of the factual background of this case when it affirmed this Court's denial of various motions and dismissal of Plaintiff's claims. See Tso v. Murray, 2019 WL 140992, at *1 (10th Cir. Jan. 9, 2019). In brief, this lawsuit arises from Plaintiff's “dissatisfaction with the child-support obligation established in his Illinois divorce from his ex-wife.” Id. Plaintiff brought claims against his ex-wife, her relatives, her Colorado and Illinois legal counsel, a court-appointed psychologist, and various Colorado and Denver governmental entities, including-as relevant to the instant Motion-the City & County of Denver and DHS. Id.

         Plaintiff filed his Second Amended Complaint (ECF No. 120) on June 9, 2017. On September 26, 2017, Judge Shaffer recommended dismissing Plaintiff's Second Amended Complaint (the “Recommendation”). (ECF No. 237.) On February 28, 2018, this Court adopted the Recommendation over Plaintiff's objection, granted Defendants' various motions to dismiss, and denied as futile Plaintiff's request for leave to supplement the complaint (“Order Adopting Recommendation”). (ECF No. 282.)

         The Court subsequently entered the Order, in which it denied Plaintiff's motion for leave to amend and motion to consolidate with Tso v. Murray, No. 17-cv-2523 (D. Colo., filed Oct. 20, 2017) pending before Judge Philip A. Brimmer of this District, and directed entry of a final judgment. (ECF Nos. 284 & 285.) The Tenth Circuit affirmed this Court's Order Adopting Recommendation and Order & Judgment. (ECF No. 306.)


         A motion for relief from a judgment under Rule 60(b) is addressed to the sound discretion of the trial court. Zimmerman v. Quinn, 744 F.2d 81, 82 (10th Cir. 1984); see also LeaseAmerica Corp. v. Eckel, 710 F.2d 1470, 1475 (10th Cir. 1983) (decision whether relief should be granted under Rule 60(b) is discretionary and should not be disturbed except for a manifest abuse of discretion). Morever, the Court is “mindful that Rule 60(b) ‘relief is extraordinary and may only be granted in exceptional circumstances.'” Beugler v. Burlington Northern & Santa Fe Ry. Co., 490 F.3d 1224, 1229 (10th Cir. 2007) (citing Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir. 2000)). Reconsideration under Rule 60(b) is not a tool to rehash previously-presented arguments already considered and rejected by the Court, nor is it a vehicle by which to present new arguments based upon law or facts that existed at the time of the original argument. FDIC v. United Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998); Van Skiver v. United States, 952 F.2d 1241, 1243-44 (10th Cir. 1991).

         Rule 60(b)(6) provides for relief from a judgment when there is “any other reason that justifies relief.” While relief under the five enumerated clauses of Rule 60(b)(1)-(5) is “extraordinary and may only be granted in exceptional circumstances, ” “Rule 60(b)(6) relief is even more difficult to attain and is appropriate only when it offends justice to deny such relief.” Yapp v. Excel Corp., 186 F.3d 1222, 1231-32 (10th Cir. 1999).

         Plaintiff proceeds pro se, and the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court cannot act as advocate for a pro se litigant, who must comply with the requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         III. ANALYSIS

         Plaintiff argues that, due to supposed conflicts of interest which undermine the impartiality of Judge Shaffer and the undersigned, the orders entered in this case are void or should be vacated in the interest of justice. (ECF No. 295 at 2, 10.) See Fed. R. Civ. P. 60(b)(4), (6). Plaintiff is factually and legally incorrect.

         A. The ...

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