United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT
Marilyn Keene seeks relief under Rules 59 and 60 of the
Federal Rules of Civil Procedure from the court's
February 16, 2017 Memorandum Decision and Order concluding
that plaintiff Karen Widman was the prevailing party in this
litigation and awarding her attorney's fees. This is
Keene's second motion for a new trial or to alter/amend
the court's judgment.For the reasons stated below, the court
DENIES Keene's motion. (Dkt. No. 214.)
Rule 59 Motion
59(b) and 59(e) of the Federal Rules of Civil Procedure
provide that a motion for a new trial or to alter or amend a
judgment "must be filed no later than 28 days after the
entry of judgment." Id. Furthermore, when a
motion involves "reconsideration of matters properly
encompassed in a decision on the merits, " it is
properly considered under Rule 59(e). Phelps v.
Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). Rule
59(e) relief is limited, and requires that a movant establish
"(1) an intervening change in the controlling law, (2)
new evidence [that was] previously unavailable, [or] (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). Also relevant is the
Tenth Circuit's admonition that successive motions
"are inappropriate vehicles to reargue an issue
previously addressed by the court when the motion merely
advances new arguments or supporting facts which were
available at the time of the original motion."
Id. "Absent extraordinary circumstances ... the
basis for [a] second motion must not have been available at
the time the first motion was filed[, ]" and "[i]t
is not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior
motion was timely filed. She cites the following grounds for
her motion: (1) the court failed to comply with the Mandate
issued by the Tenth Circuit on November 4, 2015; (2) the
court failed to consider in any adequate manner the state of
the pleadings and the stated claims of the parties as it
impacted the court's denial and dismissal of Keene's
counterclaim and the subsequent award of monetary damages to
Keene; (3) the court erred in its analysis of the express
waiver of costs and attorney's fees; (4) the court
erroneously analyzed the holding of Michell v.
Olick; and (5) the court failed to make the findings of
fact Keene requested that she claims are supported in the
record. (Def. 'sMot. 3; Dkt. No. 214.)
has not directed the court to an intervening change in
controlling law or new evidence that was previously
unavailable. And, while Keene argues that the court's
ruling was made in error, all of the grounds for relief she
relies on were fully argued in her prior pleadings and
considered in the court's ruling. Keene previously made
nearly identical arguments and demands regarding the Tenth
Circuit's Mandate, (Dkts. No. 201, 206), which the court
addressed in full (Mem. Dec. 4-8; Dkt. No. 212).
Keene previously addressed the same arguments and facts
regarding relief through Widman's complaint seeking
declaratory judgment versus Keene's counterclaim, (Dkt.
Nos. 201, 206), which the court addressed in its ruling
(Mem. Dec. 7-15; Dkt. No. 212). Keene cited the same
arguments and facts as to how the attorney's fees and
costs waiver in the Marital Settlement Agreement precludes
the court's award of attorney's fees to Widman. (Dkt.
Nos. 201, 206.) The court addressed those issues, including
the explicit exception to that waiver, in its decision.
(Mem. Dec. 8-12; Dkt. No. 212.) Keene previously
argued that Michell v. Olick, 49 Cal.App.4th 1194,
1198 (Cal.App. 1st Dist. 1996) is binding on the court's
application of California Code of Civil Procedure § 1032
to this case. (Dkt. No. 206.) The court addressed and
distinguished MichelTs applicability in its ruling.
(Mem. Dec. 5-8; Dkt. No. 212.)
Keene has not shown that the bases for her second motion were
not "available at the time the first motion[s were]
filed[, ]" and the court concludes that Keene's
second motion does little more than "revisit issues
already addressed or advance arguments that could have been
[and were] raised in prior briefing." Servants of
the Paraclete v. Does, 204 F.3d at 1012.
motion for relief under Rule 60 of the Federal Rules of Civil
Procedure was timely. "Relief under Rule 60(b) is
committed to the sound discretion of the district court and
is warranted only under exceptional circumstances."
U.S. v. Rice, 594 Fed.Appx. 481, 484 (10th Cir.
2014). Rule 60(b) permits a district court to "relieve a
party . . . from a final judgment, order, or proceeding"
for six specific, enumerated reasons. Fed.R.Civ.P. 60(b).
Keene's motion entirely fails to specify the reason upon
which she relies. Upon review of that motion, the court
cannot identify any allegations that fall within reasons
included in Rule 60(b)(1)-(5), which leaves the catch-all
provision of Rule 60(b)(6), "any other reason that
justifies relief, " as the only potentially applicable
vehicle for relief. Specifically, Rule 60(b)(6) permits
relief from a final judgment for any reason that justifies
relief, other than the reasons listed in Rule 60(b)(1)-(5)
and "requires a showing of extraordinary circumstances,
" Gonzalez v. Crosby, 545 U.S. 524, 536 (2005).
Extraordinary circumstances are those "so unusual or
compelling that extraordinary relief is warranted, or when it
offends justice to deny such relief." Cashner v.
Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir. 1996)
(internal quotation marks omitted). Rehashing the same
arguments and points previously made to the court are not
extraordinary circumstances. See McGee v. Rudek, 573
Fed.Appx. 729, 731 (10th Cir. 2014). The court also notes
that Keene's motion mischaracterizes the pleadings in
this case, the court's decision, and the cited bases for
the court's rulings. To the extent that Keene argues that
the court misapplied California law not previously cited by
the parties,  the court specifically finds that
Keene's arguments are based on mischaracterizations of
the pleadings in this case and that her arguments have no
reasons stated above, the court DENIES Keene's motion in
its entirety. (Dkt. No. 214.) Plaintiff need not respond to
 The court finds that neither a
response from the plaintiff nor oral argument would
materially assist the court in deciding the ...