United States District Court, D. Kansas
TERRY J. CLARK, Plaintiff,
TIME INC. and HEARTLAND GOLF DEVELOPMENT II, LLC, Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
March 16, 2017, the court granted summary judgment for
defendants and entered judgment against plaintiff. Docs. 65
& 66. Twenty-eight days later, plaintiff, who proceeds
pro se,  filed a Motion for Extension of Time to
File a Motion to Reconsider and to Set Aside or Amend the
Judgment. Doc. 67. It asked the court to grant plaintiff an
extension of time until May 4, 2017, to file such a motion.
Id. at 2. The court granted plaintiff's motion,
as requested, doc. 68, which was erroneous. The Federal Rules
do not permit extensions of time for filing motions to alter
or amend a judgment under Rule 59(e). Fed.R.Civ.P. 6(b)(2)
(“A court must not extend the time to act under Rule[ ]
. . . 59(e) . . . .”); see also Brown v.
McKune, 162 F. App'x 795, 796 (10th Cir. 2006)
(explaining that the Circuit has “consistently held a
district court is without authority to extend the time for
filing a Rule 59(e) motion”); Weitz v. Lovelace
Health Sys., Inc., 214 F.3d 1175, 1179 (10th Cir. 2000)
(explaining that “Rule 59 provides no exceptions”
to the 28-day time requirement, and thus, “the district
court lacked authority to grant Appellant's motion for
additional time to file her 59(e) motion.”). So, here,
the Rule 6(b)(2) motion did not authorize the extension that
4, 2017, plaintiff filed the current motion, a “Motion
for Relief from And/or to Amend Judgment.” Doc. 69.
This motion invokes both Rule 59(e) and 60(b). Because the
court cannot extend the time for plaintiff to file a Rule
59(e) motion, the court only can consider the aspect of
plaintiff's motion that seeks relief from the judgment
under Rule 60(b). See, e.g.,
Computerized Thermal Imaging v. Bloomberg, L.P., 312
F.3d 1292, 1296 n.3 (10th Cir. 2002). The court thus
considers plaintiff's Rule 60(b) motion
60(b) permits a court to relieve a party from a final
judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud . . .
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged . . .; or (6) any other reason that
Civ. P. 60(b). But, relief under Rule 60(b) is
“extraordinary and may only be granted in exceptional
circumstances.” LaFleur v. Teen Help, 342 F.3d
1145, 1153 (10th Cir. 2003) (citations and internal quotation
marks omitted). A losing party may not invoke Rule 60(b) to
rehash or restate issues already addressed, or present new
arguments that the party could have raised in earlier
filings. See Van Skiver v. United States, 952 F.2d
1241, 1244 (10th Cir. 1991), cert. denied, 506 U.S.
828 (1992) (explaining that a party may not invoke Rule 60(b)
to revisit issues already addressed or “advanc[e] new
arguments or supporting facts which were otherwise available
for presentation when the original summary judgment motion
was briefed” (citation and internal quotation marks
omitted)). And, the party seeking relief from a judgment
bears the burden to demonstrate the prerequisites entitling
him to such relief. Id. at 1243-44 (explaining that
a movant must show “exceptional circumstances by
satisfying one or more of Rule 60(b)'s six grounds for
relief from judgment.”).
plaintiff fails to show why relief is warranted under any of
the Rule 60(b) subsections. Mostly, plaintiff's motion
reasserts the same arguments against defendants' summary
judgment motion he advanced before, ignoring the fact that
the court already has considered and rejected them. This is
not a proper basis for seeking relief under Rule 60(b).
See Van Skiver, 952 F.2d at 1244; see
also Servants of Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (stating that, on motion filed under Rule
60, “[i]t is not appropriate to revisit issues already
addressed or advance arguments that could have been raised in
prior briefing” (citation omitted)).
court correctly recited the uncontroverted facts in its
summary judgment order (Doc. 65 at 13-26) based on the
admissible summary judgment evidence and construed those
facts in the light most favorable to plaintiff, the
non-moving party. The court also correctly found that
plaintiff's two claims-one for defamation and the other
for intentional infliction of emotional distress-fail as a
matter of law because plaintiff presented no triable issues
of fact to establish the required elements of those claims.
Specifically, plaintiff presented no evidence at summary
judgment-or even now-that he sustained damage to his
reputation sufficient to support a defamation claim. Doc. 65
rehashes his argument that Debra Taylor's Affidavit shows
damage to reputation, and he contends the court erred by
striking portions of the Affidavit as inadmissible hearsay.
But, as the court explained, even if it could consider the
hearsay statements, Ms. Taylor's Affidavit presented no
triable issues of fact because she never attributes her
opinions about plaintiff to the alleged defamatory statements
contained in the GOLF.com article. Id. at 30.
also failed to present any triable issue of extreme and
outrageous conduct to support an intentional infliction of
emotional distress claim. Id. at 42-43. The court
correctly concluded that no reasonable jury could find that
defendants' statements-ones made in an article that does
not even mention plaintiff by name-transcend the bounds of
decency or are utterly intolerable in a civilized society.
Id. at 43. A Kansas outrage claim requires this
showing. Id. In sum, plaintiff's attempt to
reargue the summary judgment facts and the court's ruling
granting summary judgment provides no basis for relief under
motion also asserts that “defendants offered
Affidavits, Sworn Statements, or depositions from previous
litigation that Plaintiff has no access to.” Doc. 70 at
3. But this is simply wrong. The exhibits attached to
defendants' summary judgment motions included
plaintiff's deposition transcript, discovery responses,
and documents produced in this case (as evidenced by the
Bates-stamp numbers on them). Defendant Time Inc. also has
submitted a cover letter used to transmit the produced
documents to plaintiff's lawyer while plaintiff still was
represented by counsel. Doc. 73-1. Plaintiff had access to
the documents defendants submitted to support their summary
judgment motions. Like his other arguments, this argument
provides no reason to grant relief under Rule 60(b).
also objects to the court's consideration of John
Garrity's declaration because it “isn't even
notarized like an affidavit, yet the court used it.”
Doc. 70 at 4. But, this argument just ignores federal law.
Title 28 U.S.C. § 1746 allows a party to submit unsworn
declarations so long as they contain the statement: “I
declare . . . under penalty of perjury that the foregoing is
true and correct.” 28 U.S.C. § 1746(2). Mr.
Garrity's declaration meets this requirement.
See Doc. 34-1 at 19; see also Hansen v. SkyWest
Airlines, 844 F.3d 914, 918 n.1 (10th Cir. 2016) (noting
that a declaration is not defective simply because it is
unsworn (citing 28 U.S.C. § 1746)).
plaintiff fails to demonstrate the requisite extraordinary
circumstances to entitle him to any relief under Rule 60(b).
The court thus denies his Motion for Relief from and/or to
THEREFORE ORDERED BY THE COURT THAT plaintiff's Motion
for Relief from and/or ...