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Telford v. Bradeen

United States District Court, D. South Dakota, Western Division

August 29, 2018

HOLLI TELFORD personally and as assignee of the claims of Brenda Burton, Plaintiff,
v.
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.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         BACKGROUND

         Plaintiff 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).[1]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).

         The 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.

         DISCUSSION

         I. Rule 59(e) motion

         Rule 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 & 54).

         "Federal 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.

         Plaintiff 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 68).

         Plaintiff's 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.

         II. Defendants not served

         In the 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.

         III. Amended complaint motion

         Plaintiff 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).

         A. Rule 15(b)

         The 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.

         Even if 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.

         B. ...


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