United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Request for
Reconsideration [Docket No. 65]. Plaintiff seeks
reconsideration of the Court's September 14, 2018 order,
Docket No. 64, dismissing plaintiff's claims against
defendant Playground Destination Properties
(“Playground”) without prejudice for lack of
venue. See Docket No. 65.
initiated this pro se lawsuit on December 29, 2017
alleging that he is entitled to recover $35, 000, 000 from
defendants based on their failure to inform him of a two-year
right to rescind his contract to purchase a condominium at
the Hard Rock Hotel in San Diego, California. Docket No. 1 at
4, 33. Plaintiff asserts claims for (1) violation of the
Interstate Land Sales Full Disclosure Act
(“ILSA”), 15 U.S.C. § 1701 et
seq.; (2) violation of California's Subdivided
Lands Act (“SLA”), Cal. Bus. & Prof. Code
§§ 11000-11200; (3) violation of California's
Unfair Competition Law (“UCL”), Cal. Bus. &
Prof. Code §§ 17200 et seq.; (4) fraud;
and (5) negligence. Docket No. 1 at 26-33.
26, 2018, the magistrate judge recommended that
plaintiff's claims against Playground be dismissed
without prejudice for lack of venue based on allegations
establishing that (1) defendants are residents of states
outside of Colorado and (2) all of the events giving rise to
this lawsuit took place in California. Docket No. 62 at 4. On
September 14, 2018, the Court accepted the magistrate
judge's recommendation and dismissed the claims against
Playground without prejudice. Docket No. 64 at 9-10. The
Court agreed with the magistrate judge that dismissal rather
than transfer under 28 U.S.C. § 1406 was appropriate
because plaintiff's claims were unlikely to have merit
and plaintiff knew or should have known that venue in the
District of Colorado was improper. See Id. at 8-9.
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). Because plaintiff is proceeding
pro se, the Court will construe his motion for
reconsideration liberally without serving as his advocate.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
makes four arguments in support of reconsideration. First, he
contends that the Court's order of dismissal granted
relief that was not requested by either party. See
Docket No. 65 at 1, 4. Second, he asserts that the Court
improperly disregarded the fact that plaintiff's
equitable tolling argument was preserved in the record.
See Id. at 2. Third, he argues that the Court's
decision to dismiss plaintiff's claims was contrary to
Supreme Court precedent. See Id. at 2. Finally,
plaintiff argues that it is “illogical” for the
Court to dismiss his claims against Playground when the other
claims in this lawsuit should be transferred under 28 U.S.C.
§ 1406. See Id. at 3. Each of these arguments
that plaintiff's first argument is a valid argument to
begin with, plaintiff misreads defendant's motion to
dismiss. Defendant expressly argued that plaintiff's
claims should be dismissed rather than transferred under 28
U.S.C. § 1406. See Docket No. 22 at 2 (arguing
that “the Court may and should, given the unique facts
presented, dismiss th[e] action in its entirety as to
Playground pursuant to Fed.R.Civ.P. 12(b)(3)”).
Accordingly, the Court's September 14, 2018 order grants
relief requested by a party.
second argument also fails. In determining whether to dismiss
plaintiff's claims against Playground rather than to
transfer them, the Court declined to consider plaintiff's
argument that his claims were timely with the application of
equitable tolling. See Docket No. 64 at 6.
Specifically, the Court found that plaintiff had waived his
argument for equitable tolling by failing to present it to
the magistrate judge. Id. Plaintiff contends that
this ruling was in error because he raised the issue of
equitable tolling in his response to the Tarsadia
defendants' motion to dismiss. See Docket No. 65
at 2; see also Docket No. 48 at 6-7. However, that
motion involved claims against different defendants. The
magistrate judge was not required to search the record for
additional arguments potentially relevant to Playground's
motion, but not presented in plaintiff's response.
See Garrett v. Selby Connor Maddux & Janer, 425
F.3d 836, 840 (10th Cir. 2005) (noting that a “court
cannot take on the responsibility of serving as the [pro se]
litigant's attorney in constructing arguments and
searching the record”); cf. Williams v.
Diggins, No. 08-cv-00667-MSK-KLM, 2009 WL 2809425, at *1
(D. Colo. Aug. 31, 2009) (denying in part pro se
plaintiff's motion to compel discovery on grounds that
the court was “not required to sift through the record
to isolate any deficiencies [in the defendants' discovery
responses], and it [was] incumbent upon Plaintiff to provide
th[at] information and argument to Defendants and the
Court”). Moreover, plaintiff again fails to respond to
defendant's argument that the applicable limitations
periods are not subject to equitable tolling. See
Docket No. 33 at 5-7, 9-10; see also Docket no. 64
at 7 n.5 (noting plaintiff's failure to address
defendant's argument regarding equitable tolling). Given
that the Court only considered whether plaintiff's claims
were likely to have merit in determining whether to
dismiss or transfer, plaintiff has not demonstrated that the
Court's resolution of the equitable tolling issue was
clearly in error.
next argues that the Court's decision to dismiss his
claims was contrary to Supreme Court precedent. See
Docket No. 65 at 2. But the Court has already addressed
plaintiff's citation to Goldlawr, Inc. v.
Heiman, 369 U.S. 463 (1962), and concluded that the
present case is distinguishable. See Docket No. 64
at 7-8. Plaintiff has not asserted any facts or argument
showing that the Court's ruling was erroneous.
respect to plaintiff's final argument, that
“transferring only half of th[is] case . . . would be
illogical, ” Docket No. 65 at 3, plaintiff has not
cited any case law indicating that a decision to transfer
claims against certain defendants in a case is a relevant
consideration in determining whether to dismiss or transfer
claims asserted against other defendants. See Trujillo v.
Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006)
(listing relevant factors as: (1) whether the new action
would be time barred, (2) whether the claims are likely to
have merit, and (3) whether the original action was filed in
good faith “rather than filed after plaintiff either
realized or should have realized that the forum in which he
or she filed was improper”). In any event, the Court
agrees with the magistrate judge's recommendation on the
Tarsadia defendants' motion to dismiss, Docket No. 56,
and will be dismissing plaintiff's claims against the
Tarsadia defendants in a separate order. Thus, all of
plaintiff's claims in this case are subject to the same
foregoing reasons, it is
that Plaintiff's Request for Reconsideration [Docket No.
65] is DENIED.