United States District Court, D. Kansas
ELSA T. ABRAHAM, also known as ELSA ABRAHA, Plaintiff,
GOLD CROWN MANAGEMENT LLC, Defendant.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
February 6, 2019, the court dismissed this case. Doc. 21. The
court did so because pro se plaintiff Elsa T. Abraham had
failed to file an Amended Complaint by February 1, 2019, as
the court had directed her to do, after it had concluded that
plaintiff's original Complaint failed to state a claim
for relief. See Id. The court also entered a
Judgment dismissing plaintiff's case. Doc. 22.
February 20, 2019, plaintiff filed two documents with the
court. First, plaintiff filed a “Motion for
Extended Time.” Doc. 23. This one-page motion asks the
court to extend plaintiff's time for filing an Amended
Complaint to March 15, 2019. Second, plaintiff filed an
“Opposition to Dismiss.” Doc. 24. This one-page
filing recites that plaintiff “[has] not received any
letters from the court in regards to Amended Complaint to be
filed with the courts.” Id. at 1. The docket
reflects, however, that the Clerk of the Court has mailed all
filings in this case to plaintiff by regular mail to the
mailing address she has provided to the court. See,
e.g., Docs. 12, 14, 17, 19, 21, 22. Plaintiff's
“Opposition to Dismiss” also asks the court to
grant plaintiff an extension of time until March 15, 2019, to
file her Amended Complaint. Doc. 24 at 1. Defendant has filed
a Response opposing plaintiff's motion seeking an
extension of time. Doc. 25.
plaintiff has filed her motion after the court has entered
Judgment in the case, the court construes her motion either
as one made under Federal Rule of Civil Procedure 59(e)-
asking the court to alter or amend a judgment-or one seeking
relief from a final judgment under Federal Rule of Civil
59(e) allows a court to grant a motion to alter or amend a
judgment “only if the moving party can establish (1) an
intervening change in controlling law; (2) the availability
of new evidence that could not have been obtained previously
through the exercise of due diligence; or (3) the need to
correct clear error or prevent manifest injustice.”
Wilkins v. Packerware Corp., 238 F.R.D. 256, 263 (D.
Kan. 2006), aff'd 260 Fed.Appx. 98 (10th Cir.
2008). Rule 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
Fed. R. Civ. P. 60(b). 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, 1243 (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
her 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.”).
the only reason plaintiff provides for the court to grant her
the relief she seeks is that-she contends-she “[has]
not received any letters from the court in regards to Amended
Complaint to be filed with the courts.” Doc. 24 at 1.
Based on this conclusory assertion, the court could set aside
the Judgment under Rule 60(b)(1), if it finds that plaintiff
failed to file her Amended Complaint in a timely manner
because of “excusable neglect.” Fed.R.Civ.P.
60(b)(1). Excusable neglect “is a somewhat elastic
concept and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P.,
507 U.S. 380, 392 (1993) (citations and internal quotation
marks omitted). But, a party's “inadvertence,
ignorance of the rules, or mistakes concerning the rules do
not usually constitute ‘excusable' neglect.”
determination of whether neglect is excusable “is at
bottom an equitable one, taking account of all relevant
circumstances surrounding the party's omission.”
Id. at 395. The factors to consider when making this
determination include “the danger of prejudice to the
[opposing party], the length of the delay and its potential
impact on judicial proceedings, the reason for the delay,
including whether it was within the reasonable control of the
movant, and whether the movant acted in good faith.”
Id. But “perhaps the most important single
factor” to determine whether neglect is excusable is
“[f]ault in the delay.” Jennings v.
Rivers, 394 F.3d 850, 857 (10th Cir. 2005) (citations
and internal quotation marks omitted). “An additional
consideration is whether the moving party's underlying
claim is meritorious.” Id. (citing Cessna
Fin. Corp. v. Bielenberg Masonry Contracting, Inc., 715
F.2d 1442, 1444-45 (10th Cir. 1983) (discussing, in the
context of a motion to set aside a default judgment, the need
to avoid frivolous litigation)). Though these factors guide
the court's inquiry, the excusable neglect determination,
ultimately, is an equitable decision that's committed to
the court's sound discretion. See Bishop v.
Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004)
(reviewing excusable neglect decision under abuse of
considering the relevant factors, the court exercises its
discretion to grant plaintiff's request to set aside the
Judgment and allow her to file an Amended Complaint out of
time. Most of the factors favor granting plaintiff leave to
file an Amended Complaint out of time because (1) little
danger of prejudice to defendant exists when plaintiff just
filed her case in August 2018, the court never entered a
Scheduling Order, and discovery hasn't commenced; (2) the
length of plaintiff's delay isn't too significant-she
filed her motion asking for leave to file her Amended
Complaint out of time just 19 days after the original
deadline expired, and (3) no evidence exists that plaintiff
has acted in bad faith.
the court notes that perhaps the most significant factor in
the excusable neglect determination-i.e., fault in
the delay-favors denying plaintiff's motion.
Jennings, 394 F.3d at 857. Although plaintiff
contends that she never has received any correspondence from
the court about filing an Amended Complaint, the docket
reflects that the Clerk has mailed all correspondence to
plaintiff at her address of record. Our court's local
rules provide that such mailing is sufficient notice.
See D. Kan. Rule 5.1(c)(3) (“Any notice mailed
to the last address of record of an attorney or pro se party
is sufficient notice.”). And if plaintiff didn't
receive the mailing because she is no longer resides at her
address of record, plaintiff neglected her responsibility to
inform the court of any address changes. See Id.
(“Each attorney or pro se party must notify the clerk
in writing of any change of address or telephone
number.”); see also In re Gregory, 24
Fed.Appx. 921, 923 (10th Cir. 2001) (affirming district
court's denial of a Rule 60(b) motion where pro se
debtors failed to respond timely to a court order that was
mailed to the debtors' address of record and the debtors
never informed the clerk of their change of address).
defendant reports that plaintiff never has complied with her
Rule 26 disclosure obligations, as the court had ordered.
Before the court dismissed the case on February 6, the court
had ordered the parties to exchange Rule 26 disclosures by
January 15, 2019. Doc. 15. The docket reflects that defendant
served its Rule 26 disclosures by the deadline (Doc. 18), but
it shows no service by plaintiff. And defendant reports that
plaintiff still never has served her Rule 26 disclosures.
See Doc. 20 at 2; see also Doc. 25 at 3.
These failures provide additional examples of how plaintiff
has treated her obligations with indifference.
the court exercises its discretion to grant plaintiff relief
under Rule 60(b)(1). The court sets aside the Judgment in
this case. And, it will allow plaintiff one more opportunity
to file an Amended Complaint-one that must cure the
deficiencies the court previously has identified. The
court orders plaintiff to file her Amended Complaint on or
before March 15, 2019. If plaintiff fails to file her Amended
Complaint by this deadline, the court again will dismiss her
IS THEREFORE ORDERED BY THE COURT THAT
plaintiff's “Motion for Extended ...