United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS'
MOTION FOR RECONSIDERATION
N. Parrish United States District Court Judge.
Judge Jill N. Parrish On January 22, 2019, the court issued
an order (the “Fee Order”) awarding
attorney's fees under the Utah Pattern of Unlawful
Activity Act (the “UPUAA”) to defendants David
Odenath and Raymond Weller. (ECF No. 260). Plaintiffs
subsequently filed a motion for reconsideration on February
19, 2019. (ECF No. 263). Mr. Odenath responded in opposition
on March 5, 2019 (ECF No. 271), and Mr. Weller responded in
opposition on March 14, 2019 (ECF No. 274). Plaintiffs
replied on March 19, 2019 (ECF No. 275). For the reasons
below, plaintiffs' motion is denied.
motion for reconsideration-brought, as it was, within 28 days
of the Fee Order-is properly construed as a Rule 59(e) motion
to alter or amend a judgment. Relief under Rule 59(e) is
appropriate where there is (1) an intervening change in the
controlling law, (2) new evidence 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). A Rule 59(e) motion may
also be granted when “the court has misapprehended the
facts, a party's position, or the controlling law.”
59(e) does not permit parties to “revisit issues
already addressed or advance arguments that could have been
raised in prior briefing.” Id. This case
illustrates the wisdom of imposing a high burden on parties
seeking to relitigate a matter already decided. In opposing
the award of attorney's fees, plaintiffs spent less than
a single page arguing that the statutory language of the
UPUAA could not support an award of attorney's fees,
advancing a mysterious argument that the UPUAA should be
interpreted by reference to federal civil rights fee-shifting
case law. But having lost, plaintiffs now advance an array of
new arguments on that topic.
vast majority of these arguments “could have been
raised in prior briefing” but were not. Id.
Others were advanced by plaintiffs' briefing and rejected
in the Fee Order. The court therefore declines to consider
sole issue that justifies reconsideration is the court's
incomplete statement of facts regarding what plaintiffs
characterize as an attempt to amend their complaint. The Fee
Order indicated that plaintiffs had not requested leave to
amend their complaint, speculating that their failure to do
so may have been part of an attempt to present the same
arguments to another judge in the event that their complaint
was dismissed. Plaintiffs assert that the court made a
“factual error” inasmuch as they had requested an
opportunity to amend their complaint.
their off-hand request did not qualify as a motion for leave
to amend. Plaintiffs had included in their memoranda a single
sentence requesting leave to amend their complaint
“[i]n the event any of the pending motions to dismiss
are granted[.]” (ECF No. 127 at i). But plaintiffs
never-either before or after dismissal-filed a motion seeking
leave to amend. As the court noted in its order dismissing
[A]fter amending as a matter of course, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). And in this district, “[n]o motion . . . may
be included in a response or reply memorandum. Such motions
must be made in a separate document.” DUCivR
7-1(b)(1)(A). Furthermore, “a request for leave to
amend must give adequate notice to the district court and to
the opposing party of the basis of the proposed amendment
before the court is required to recognize that a motion for
leave to amend is before it.” Calderon v. Kan.
Dept. of Social & Rehab. Servs., 181 F.3d 1180,
1186-87 (10th Cir. 1999). The plaintiffs' identical,
one-sentence requests to amend their complaint “in the
event any of the pending motions to dismiss are
granted” do not give this court or the defendants any
hint as to the basis of a proposed amendment.
(ECF No. 215 at 11 n.9). In short, plaintiffs' cursory
request-viewed in light of the expansive scope of their
deficient RICO/UPUAA complaint-was insufficient both in form
and substance to constitute a motion for leave to amend.
the Fee Order expressly indicated that the plaintiffs'
failure to seek leave to amend and the inferences flowing
therefrom were “separate from the proper interpretation
of th[e] statute” on which the court relied in awarding
fees. (ECF No. at 3 n.2). Thus, even with a more complete
narrative of these events, the Fee Order requires no
reasons articulated, plaintiffs' motion for
reconsideration (ECF No. 263) is DENIED.