United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT
Waddoups United States District Court Judge
David Shell 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. For the reasons stated
below, the court DENIES Shell's motion. (Dkt. No.
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 briefing.” Id.
motion was timely filed. In several respects, Shell's
motion mirrors the two motions for reconsideration filed by
defendant Marilyn Keene. Among other arguments that mirror
her motion, he cites the following grounds for his motion:
(1) the court failed to comply with the Mandate issued by the
Tenth Circuit on November 4, 2015; and (2) the court erred in
its analysis of the express waiver of costs and
attorney's fees. (Def. Shell's Mot. 6-7;
Dkt. No. 216.) Shell also argues, as did Keene, that the
court erroneously analyzed the holding of Michell v.
Olick. (Id. at 16-18; Dkt. No. 216.)
Additionally, Shell's motion mirrors and restates his
objection to the court's original prevailing party
determination. (Def. Shell's Objection; Dkt. No.
210), where he argued that (1) the court failed to comply
with the Tenth Circuit's Mandate; (2) neither the Notes
nor the Marital Settlement Agreement can support a statutory
award of attorney's fees to Widman; (3) California Civil
Code § 1717 is not available in this action to support
an award of attorney's fees; and (4) the court erred in
not mechanically applying California Code of Civil Procedure
§ 1032(a)(4) to its prevailing party determination.
has not directed the court to an intervening change in
controlling law or new evidence that was previously
unavailable. And, while Shell argues that the court's
ruling was made in error, all of the grounds for relief he
relies on were fully argued in his prior pleadings or in
Keene's prior pleadings on the same grounds and were
considered in the court's ruling.
Shell has failed to show that the bases for his motion were
not “available at the time the first motion[s were]
filed[, ]” and the court concludes that Shell's
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). Shell's motion entirely fails to
specify the reason upon which he 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 Shell's motion,
like Keene's, mischaracterizes the pleadings in this
case, the court's decision, and the cited bases for the
court's rulings. To the extent that Shell argues that the
court misapplied California law not previously cited by the
parties,  the court specifically finds that Shell s
arguments are based on case law analyzing California Code of
Civil Procedure § 1032(a)(4), which does not address the
facts of this case, namely a situation in which California
Civil Code § 1717 is also applicable, and, as the court
previously determined, is the primary statute at issue in
determining the prevailing party here, notwithstanding the
court believes the analysis would not change upon harmonizing
it with California Code of Civil Procedure §
1032(a)(4).Thus, Shell's arguments have no merit.
reasons stated above, the court DENIES Shell's motion in
its entirety. (Dkt. No. 216.) 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 ...