United States District Court, D. South Dakota, Western Division
HOLLI TELFORD personally and as assignee of the claims of Brenda Burton, Plaintiff,
RON A. BRADEEN, BRADEEN REAL ESTATE, JEFF STORM, JIM BULTSMA, JIM ASHMORE, SOUTHERN HILLS TITLE COMPANY, MORNINGSIDE PROPERTIES LLP, HEARTLAND REAL ESTATE, VERYLIS R. BOYD, WARNER C. BOYD, FALL RIVER COUNTY SHERIFF ROBERT EVANS and SA DANE RASMUSSEN, in their official capacities, Defendants.
JEFFREY L. VIKEN CHIEF JUDGE
Holli Telford, appearing pro se, filed this action
against the defendants. (Docket 1). The complaint includes
wide-ranging allegations, and plaintiff contends a variety of
federal and state laws support her case. Id.
Defendants Verylis R. Boyd, Warner C. Boyd, Morningside
Properties LLP, Jim Bultsma, Heartland Real Estate, Jim
Ashmore and Southern Hills Title Company filed motions to
dismiss. (Dockets 18, 23 & 37). The court granted the
motions based on its analysis of Federal Rules of Civil
Procedure 12(b)(6) and 12(c) and entered judgment in favor of
those defendants. (Docket 51).Following the court's
judgment, plaintiff filed a motion for relief under Federal
Rule of Civil Procedure 59(e) and a motion to submit an
amended complaint. (Dockets 54 & 56). Defendants Ron A.
Bradeen, Jeff Storm and Bradeen Real Estate, Inc.,
("Bradeen defendants") filed a motion grounded in
Rules 12(b)(1), 12(b)(6), 12(b)(5) and 12(c). (Docket 57).
Plaintiff responded with a cross-motion for summary judgment
and an amended cross-motion for summary judgment. (Dockets 72
& 98). The remaining pending motions from plaintiff seek
various forms of relief. (Dockets 74, 76 & 102).
court's prior order dismissing some defendants set forth
the factual and legal allegations in plaintiff's
complaint and the asserted causes of action. (Docket 51 at
pp. 3-11). The court incorporates that portion of the prior
order for background purposes.
Rule 59(e) motion
59(e) provides, "[a] motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the
judgment." Fed.R.Civ.P. 59(e). The court entered
judgment in favor of the dismissed defendants on February 27,
2018, and plaintiff filed her motion less than 28 days from
that judgment, so the motion is timely. (Dockets 51, 52 &
Rule of Civil Procedure 59(e) was adopted to clarify a
district court's power to correct its own mistakes in the
time period immediately following entry of judgment."
Chapman v. Hiland Partners GP Holdings, LLC, 862
F.3d 1103, 1110-11 (8th Cir. 2017) (quoting Innovative
Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black
Hills, 141 F.3d 1284, 1286 (8th Cir. 1998)). "Rule
59(e) motions serve the limited function of correcting
'manifest errors of law or fact or to present newly
discovered evidence.'" United States v. Metro.
St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)
(quoting Hagerman v. Yukon Energy Corp., 839 F.2d
407, 414 (8th Cir. 1988))." 'Such motions cannot be
used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior
to entry of judgment.'" Id. (quoting
Hagerman, 839 F.2d at 414). District courts have
broad discretion when considering whether to grant a motion
to amend or alter a judgment under Rule 59(e). Id.
explains the motion "clarifies the facts pled by
Plaintiff, invokes new material facts created during this
litigation, and acknowledges the [mootness] of her claims
against certain officials named in the original
Complaint." (Docket 55 at p. 2) (capital letters
modified). The motion reargues and reframes the allegations
in plaintiff's complaint. Id. at pp. 2-25.
Defendants Verylis R. Boyd, Warner C. Boyd, Morningside
Properties LLP, Jim Bultsma and Heartland Real Estate filed
oppositions. (Dockets 62 & 63). They argue plaintiff
fails to meet the Rule 59(e) legal standard. (Dockets 62
& 63). Defendants Jim Ashmore and Southern Hills Title
Company filed a motion to join these oppositions. (Docket
motion fails to demonstrate "manifest errors of law or
fact or [ ] newly discovered evidence." Metro. St.
Louis, 440 F.3d at 933 (internal quotation marks
omitted). Instead, plaintiff "tender[s] new legal
theories, or raise[s] arguments which could have been offered
or raised prior to entry of judgment." Id.
(internal quotation marks omitted). The court denies the Rule
59(e) motion. See id.
Defendants not served
order dismissing certain defendants, the court indicated
defendants Robert Evans and Dane Rasmussen had not been
served. (Docket 51 at p. 14). The court directed plaintiff to
serve these defendants and submit a filing documenting the
completion of service by March 29, 2018. Id. The
court stated failure to abide by this direction would result
in dismissal of defendants Evans and Rasmussen pursuant to
Rule 4(m). Id. (citing Fed.R.Civ.P. 4(m)). Plaintiff
failed to comply with this order. The court dismisses all
claims against defendants Evans and Rasmussen.
Amended complaint motion
filed a motion to submit an amended complaint under Rule
15(b)(2) and attached the proposed amended complaint.
(Dockets 56 & 56-1). In ruling on earlier motions to
dismiss, the court noted "plaintiff submitted filings
including numerous factual assertions beyond those alleged in
the complaint." (Docket 51 at p. 12). The court stated
the "additional facts in plaintiff's responses are
not properly before the court and the court will not consider
them in ruling on defendants' motions." Id.
Plaintiff asserts that was an error and now seeks to add the
allegations in an amended complaint. (Docket 56). The Bradeen
defendants and defendants Verylis R. Boyd, Warner C. Boyd,
Morningside Properties LLP, Jim Bultsma and Heartland Real
Estate submitted briefs opposing plaintiff's motion.
(Dockets 61, 62 & 63). They argue Rule 15(b)(2) is
inapplicable and plaintiff otherwise fails to justify the
request to file an amended complaint. (Dockets 61, 62 &
63). Defendants Jim Ashmore and Southern Hills Title Company
filed a motion to join these arguments. (Docket 68).
title of Rule 15(b) is "Amendments During and After
Trial." Fed.R.Civ.P. 15(b). Rule 15(b)(2) provides:
(2) For Issues Tried by Consent. When an issue not raised by
the pleadings is tried by the parties' express or implied
consent, it must be treated in all respects as if raised in
the pleadings. A party may move-at any time, even after
judgment-to amend the pleadings to conform them to the
evidence and to raise an unpleaded issue. But failure to
amend does not affect the result of the trial of that issue.
Fed. R. Civ. P. 15(b)(2) (bold and italics omitted); see
Trip Mate, Inc. v. Stonebridge Cas. Ins. Co., 768 F.3d
779, 784 (8th Cir. 2014) (discussing Rule 15(b)(2)).
"Typically, a litigant seeks to amend under Rule 15(b)
after successfully arguing at trial some legal or
factual matter that was not officially pled." DRR,
L.L.C. v. Sears, Roebuck & Co., 171 F.R.D. 162, 165
(D. Del. 1997) (emphasis added). "Amendments to conform
to the evidence are desirable because they bring the
pleadings in line with the issues that actually were
developed at trial; this is permitted even though
the material inserted by amendment was not presented by the
pleadings as originally drawn." § 1493 Issues
Not Raised by Pleadings But Tried by Consent-In General,
6A Federal Practice & Procedure Civ.
§ 1493 (3d ed.) (emphasis added). The court finds Rule
15(b) is not applicable at this stage of the case. Trial has
not occurred. No issues have been "tried by the
parties' express or implied consent[.]" Fed.R.Civ.P.
15(b)(2); Trip Mate, 768 F.3d at 784.
Rule 15(b)(2) applied, plaintiff's motion would not be
proper. Plaintiff's proposed amended complaint seeks to
re-include defendants the court already dismissed. (Docket
51). "The effect of the amendment [plaintiff] propose[s]
would be not to conform the pleadings to a judgment [she has]
won, but to jeopardize and perhaps to overthrow a judgment
[she has] lost." Hart v. KnoxCty., 79 F.Supp.
654, 658 (E.D. Tenn. 1948). As Hart explained:
It is a prime purpose of paragraph (b) to avoid the necessity
of new trials because of procedural irregularities, not to
set judgments aside and make new trials necessary. If this
latter application of the rule were permitted, a losing
party, by motions to amend and rehear, could keep a case in
court indefinitely, trying one theory of recovery or defense
after another, in the hope of finally hitting upon a
successful one. Courts draw a dividing line between this use
of amendment and those uses aimed at conformity.
Id.; see DRR, L.L.C., 171 F.R.D. at 165
(embracing Hart's reasoning); see also In re
Engle Cases, 767 F.3d 1082, 1121-22 (11th Cir. 2014)
(denying an attempt to amend a complaint where "counsel
were trying to make an end run around" prior adverse
rulings). Plaintiff's Rule 15(b)(2) motion is not proper
based on the Rule's text and purpose.