Calmat Co. v. Oldcastle Precast, Inc.

• Decision Date: 04 December 2017
• Docket Number: Civ. No. 16-26 KG/JHR
• Parties: CALMAT CO., Plaintiff, v. OLDCASTLE PRECAST, INC., and JOHN DOES 1-5, Defendants.
• Court: U.S. District Court — District of New Mexico

CALMAT CO., Plaintiff, v. OLDCASTLE PRECAST, INC., and JOHN DOES 1-5, Defendants.

Civ. No. 16-26 KG/JHR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 4, 2017

ORDER STRIKING AND DENYING MOTIONS, AND PROPOSING FILING RESTRICTIONS

This matter comes before the Court on "Defendant Oldcastle Precast, Inc.'s Motion to Strike Rune Kraft's Motions to Void All Rulings (Docs. 161 and 170), Strike his Motion Related to Document 146 (Doc. 171), Deny his Motions for Leave to File as Amicus Curiae (Docs. 163, 164, and 166) and Instruct the Clerk of the Court Not to Accept Further Pleadings from Rune Kraft" (Motion), filed June 21, 2017. (Doc. 174). The Court determines that this Motion is well-taken and grants the Motion as described below.

As a preliminary matter, the Court construes the Motion as Defendant Oldcastle Precast, Inc.'s (Oldcastle) response to various motions filed by Rune Kraft (Docs. 161, 170, 171, 163, 164, and 166). It appears, however, that Oldcastle did not serve the Motion on Rune Kraft. Because Rune Kraft has continued to file matters in his case after Oldcastle filed its Motion, the Court concludes that Rune Kraft has had access to the docket sheet, and has had an opportunity to see the Motion and to respond to it. Even if Rune Kraft is unaware of the Motion, the matters Oldcastle raises in the Motion are matters which the Court would have addressed in deciding Rune Kraft's motions had Oldcastle simply not responded.¹

A. The Request to Strike Motions

1. "Notice to the Court, the Chief Judge of the Court and the Chief Judge of the Tenth Circuit and Motion to Void All Rulings Issued in the Case" (Doc. 161)

The Court notes that the "Notice to the Court, the Chief Judge of the Court and the Chief Judge of the Tenth Circuit and Motion to Void All Rulings Issued in the Case" was filed in error. Consequently, that filing is not a pending motion which the Court can strike.

2. "Motion Related to Document 146-the Order was not Served in a Timely Manner and is Wrong as a Matter of Law" (Doc. 171)

The Court construes the "Motion Related to Document 146-the Order was not Served in a Timely Manner and is Wrong as a Matter of Law" as a motion to reconsider the Court's May 8, 2017, Memorandum Opinion and Order (Doc. 146). The Court will, therefore, address the merits of that motion rather than strike it.

In October 2016, the Court granted, in part, Rune Kraft's motion to dismiss (Doc. 16) and dismissed Rune Kraft as a defendant in this action. (Doc. 56). In March 2017, the Court held that Rune Kraft "has no basis for further participation in this case," since he is no longer a defendant and does not purport to be a plaintiff. (Doc. 126) at 3. Then, on May 8, 2017, the Court denied Rune Kraft's motion to be re-joined as a defendant in this lawsuit, a motion based on Kraft Americas Holdings, Incorporated's (KAHI) April 2017 transfer of its interest in the royalty payments at issue to Rune Kraft. (Doc. 146). In making that decision, the Court relied on Fed. R. Civ. P. 25(c) (joinder of party when interest transferred). Rune Kraft now challenges that May 8, 2017, decision.

The Tenth Circuit has analyzed motions to reconsider interlocutory orders, like this one, under Fed. R. Civ. R. 54(b)² and looked to Fed. R. Civ. P. 59(e) for guidance in addressing those motions to reconsider. Ankeney v. Zavaras, 524 Fed. Appx. 454, 458 (10th Cir. 2013) (stating that, in considering Rule 54(b) motion to reconsider, "court may look to the standard used to review a motion made pursuant to Federal Rule of Civil Procedure 59(e)."). A Rule 59(e) movant carries the burden of demonstrating that the Court should alter or amend a judgment. See, e.g., Winchester v. Wilkinson, 2015 WL 2412175, at *2 (E.D. Okla.) ("court finds petitioner has failed to meet his burden for relief under Fed.R.Civ.P. 59(e).").

Rule 59(e) relief is appropriate if there is new controlling law, new evidence not available previously, or if there is a "need to correct clear error or prevent manifest injustice." Ankeney, 524 Fed. Appx. at 458 (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). The Tenth Circuit has defined clear error as "an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1236 (10th Cir. 2001). Although the Tenth Circuit has not specifically defined manifest injustice in the Rule 59(e) context, other courts have defined manifest injustice as "more than just a clear and certain prejudice to the moving party, but also a result that is fundamentally unfair in light of governing law." Smith v. Lynch, 2015 WL 4324167, *3 (D.D.C.). See also In re Green Goblin, Inc., 2012 WL 1971143, *1 (Bankr. E.D. Pa. May 31, 2012) ("In order for a court to reconsider a decision due to 'manifest injustice,' the record presented must be so patently unfair and tainted that the error is manifestly clear to all who view it.") (quoting In re Roemmele, 466 B.R. 706 (Bankr. E.D. Pa. 2012)). Rule 59(e) does not allow a losing party to "revisit issues already addressed or advancearguments that could have been raised in prior briefing." Servants of the Paraclete, 204 F.3d at 1012.

Here, Rune Kraft is not arguing that there is new controlling law or newly discovered evidence which would justify a reconsideration of the May 8, 2017, decision. Rune Kraft also does not explain how the Court's application and analysis of Rule 25(c) was arbitrary or "fundamentally unfair in light of governing law." Instead of addressing the applicability of Rule 25(c), Rune Kraft complains generally about corruption and lack of procedural due process, and the fact that the Court mailed the May 8, 2017, decision to him on June 1, 2017. Rune Kraft also raises for the first time arguments of standing which he could have raised in his motion seeking to be re-joined as a defendant. For the foregoing reasons, the Court finds that Rune Kraft has not carried his burden of demonstrating that the Court should reconsider its May 8, 2017, decision in order "to correct clear error or prevent manifest injustice." The Court, therefore, denies the "Motion Related to Document 146-the Order was not Served in a Timely Manner and is Wrong as a Matter of Law."

3. "Notice to the Court, the Chief Judge of the Court and the Chief Judge of the Tenth Circuit and Motion to Void All Rulings Issued in the Case Based on Corruption and Lack of Procedural Due Process" (Doc. 170)

Because Rune Kraft is no longer a party to this lawsuit, he may not continue to participate in the litigation of the merits of this lawsuit. See U.S. ex rel. McCready v. Columbia/HCA Healthcare Corp., 251 F. Supp. 2d 114, 119 (D.D.C. 2003) ("general rule that nonparties may not participate in litigation"). Cf. Abeyta v. City of Albuquerque, 664 F.3d 792, 795 (10th Cir. 2011) (generally "only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment"). Even if Rune Kraft acquired an interest in the royalty payments from KAHI, the Court adjudged that KAHI "has no interest or claim to the royalty payments at issue in this case" and dismissed KAHI from the case. (Doc. 132) at 3. Hence, Rune Kraft does not have an interest which is before the Court. See also Memorandum Opinion and Order (Doc. 146) (discussion regarding whether to join Rune Kraftas a defendant). For these reasons and in order to manage its docket in an efficient and expedient manner, the Court strikes the "Notice to the Court, the Chief Judge of the Court and the Chief Judge of the Tenth Circuit and Motion to Void All Rulings Issued in the Case Based on Corruption and Lack of Procedural Due Process." Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (holding "that district courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases.").

B. Request to Deny Motions for Leave to File As Amicus Curiae (Docs. 163, 164, and 166)

"Historically, amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and advises the Court in order that justice may be done, rather than to advocate a point of view so that a cause may be won by one party or another." United States v. Bd. of Cty. Commissioners of the Cty. of Otero, 184 F. Supp. 3d 1097, 1115 (D.N.M. 2015), aff'd sub nom. United States v. Bd. of Cty. Commissioners of Cty. of Otero, 843 F.3d 1208 (10th Cir. 2016), cert. denied sub nom. Bd. of Cty. Comm'rs of Otero Cty., New Mexico v. United States, 2017 WL 1881715 (2017) (citation omitted). To determine whether to allow an amicus brief, courts consider such factors as

(1) "whether the proposed amicus is a disinterested entity"; (2) "whether there is opposition to the entry of the amicus"; (3) "whether counsel is capable of making arguments without the assistance of an amicus"; (4) "the strength of the information and argument presented by the potential amicus curiae's interests"; and (5) "perhaps most importantly," "the usefulness of information and argument presented by the potential amicus curiae to the court."

Id. (quoting Ass'n of Am. Sch. Paper Suppliers v. U.S., 683 F.Supp.2d 1326, 1328 (Ct. Int'l Trade 2010) (citations omitted)).

In this case, Rune Kraft is certainly not a disinterested person and Oldcastle opposes the entry of the amicus. Additionally, although Rune Kraft is purportedly knowledgeable of the facts of the case, the Court has grave concerns that his legal argument would not be useful and,instead, would be confusing, unhelpful, and self-serving. These factors dictate that the Court deny the Motions for Leave to File as Amicus Curiae.

C. Filing Restrictions

The Court of Appeals for the Tenth Circuit has discussed the Court's power to impose filing restrictions and the procedure for imposing filing restrictions:

"[T]he right of access to the courts is neither absolute nor

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