Levy v. Swift Transp. Co., 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
SEP 21 1999
PATRICK FISHER
Clerk
ROBERT A. LEVY and PHYLLIS B.

LEVY,
Plaintiffs-Appellants,
v.
No. 99-2167
SWIFT TRANSPORTATION
COMPANY, INC., Sparks, Nevada;
SWIFT TRANSPORTATION
COMPANY, INC., Phoenix, Arizona;
JERRY C. MOYES; KEITH DALE
NICHOLS; EDDIE LEE TIGGS;
UNITED STATES OF AMERICA;
CENTRAL INTELLIGENCE
AGENCY,
(D.C. No. CIV-98-578-LH)

(D. N.M.)
Defendants-Appellees.
ORDER AND JUDGMENT
Before ANDERSON, KELLY and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiffs Robert A. Levy and Phyllis B. Levy appeal the district courts
orders denying their motion for assignment of judge, dismissing the case, denying
their Rule 59(e) motion to alter or amend the judgment, and barring them from
filing further federal proceedings in this matter. Plaintiffs also argue the district
court erred in refusing to allow discovery before dismissing the case. However,
this order is not included in plaintiffs notice of appeal and therefore is not
properly before this court for review.
See Scaramucci v. Dresser Indus., Inc.
, 427
F.2d 1309, 1318 (10th Cir. 1970). We affirm.

I.
Plaintiffs originally brought an action in 1997 for damages as a result of a
motor vehicle collision on July 20, 1994, and for other damages arising out of a
conspiracy. Judge Santiago Campos dismissed the case without prejudice.
Plaintiffs again filed a complaint in May 1998 in the present action, which was
substantially the same as the original complaint but which added the United States
and the CIA as parties and contained additional conspiracy allegations. Judge
LeRoy Hansen dismissed the case for lack of subject matter jurisdiction and
ordered: Plaintiffs are prohibited from filing any further proceedings against
these Defendants relating to the same subject matter in this district court.
-2-
Record, Doc. 40 at 11.

II.
Plaintiffs argue the district court erred in denying their motion to assign
this case to Judge Campos, who presided over the first case. We review a district
courts denial of a motion to recuse for abuse of discretion.
United States v.
Burger , 964 F.2d 1065, 1070 (10th Cir. 1992).

In their motion, plaintiffs argued it would be appropriate to assign the case
to Judge Campos because he was familiar with the case. Plaintiffs made no
allegations of bias, prejudice, or impartiality by Judge Hansen.
See 28 U.S.C.
455 (discussing circumstances requiring disqualification of judges). In denying

the motion, Judge Hansen found the request was not based on disqualification or
any other justifiable reason. Plaintiffs now allege Judge Hansen was biased, as
evidenced by his rulings against them. However, these later rulings do not show
Judge Hansen was biased at the time he denied the motion to recuse or, for that
matter, at the time the rulings were entered. The district court did not abuse its
discretion in denying the motion to assign the case to Judge Campos.
III.
Plaintiffs argue the district court erred in dismissing their complaint against
all defendants. The court dismissed the case for lack of diversity and for failure
to state a claim under Fed. R. Civ. P. 12(b)(6). We review this dismissal de novo.
-3-
See Ordinance 59 Assn v. United States Dept of Interior Secretary
, 163 F.3d
1150, 1152 (10th Cir. 1998). Plaintiffs do not appeal the courts dismissal of
defendant CIA for lack of subject matter jurisdiction under the Federal Tort
Claims Act.
The district court found plaintiffs failed to file their complaint against the
United States within the statute of limitations. A tort claim against the United
States must be presented in writing to the appropriate federal agency within two
years after the claim accrues. 28 U.S.C. 2401(b). The statute of limitations
began to run when plaintiffs knew or had reason to know of the existence and
cause of the injury that is the basis of their action.
Corp. v. United States Bureau of Reclamation
See Industrial Constructors
, 15 F.3d 963, 969 (10th Cir. 1994)
(citing United States v. Kubrick , 444 U.S. 111, 121 (1979)).

The accident occurred July 20, 1994. Plaintiffs contend they did not know
of the CIA connection until July 19, 1995, and they sent timely notice of their
claim to the CIA on May 22, 1997. They contend the statute of limitations was
tolled because of fraudulent concealment. To toll the statute of limitations for
fraudulent concealment, plaintiffs must show: (1) the United States used
fraudulent means; (2) successful concealment from plaintiffs; and (3) plaintiffs
did not know or by the exercise of due diligence could not have known that they
might have a cause of action.
See Ballen v. Prudential Bache Sec., Inc.
-4-
, 23 F.3d
335, 336-37 (10th Cir. 1994). The district court found plaintiffs failed to show
they could not have discovered the cause of action by the exercise of due
diligence.
Plaintiffs made conclusory allegations that the CIA fraudulently concealed
its participation in the accident. Even accepting these allegations as true,
plaintiffs made no showing they could not have known of the CIAs alleged
involvement through the exercise of due diligence. Plaintiffs asserted they did
not know of the CIAs connection until someone sent them a book detailing the
conspiracy, yet they fail to show they could not have discovered this book earlier
through the exercise of due diligence.
Plaintiffs allege the United States is engaged in a continuing conspiracy
against them and the statute of limitations did not begin to run until the date of
the last tortious act.
See Crosswhite v. Brown , 424 F.2d 495, 497 (10th Cir.
1970). The district court found all of plaintiffs claims of conspiracy occurred
before the summer of 1994. The court further found plaintiffs conspiracy claim
consisted of conclusory allegations that failed to state a claim for continuing
conspiracy. A review of the record confirms the courts conclusion. Plaintiffs
failed to allege a continuing conspiracy that would toll the statute of limitations
or state a cause of action. The district court did not err in dismissing plaintiffs
claims against the United States.
-5-
After dismissing plaintiffs claims against the United States and the CIA,
the district court dismissed the remaining defendants for lack of complete
diversity. Diversity jurisdiction requires complete diversity -- each defendant
must be a citizen of a different state than plaintiff.
Harris v. Illinois-California
Express, Inc. , 687 F.2d 1361, 1366 (10th Cir. 1982) (quoting
Owen Equip. and
Erection Co. v. Kroger , 437 U.S. 365 (1978)). Plaintiffs and two defendants were
residents of Texas, creating a lack of diversity.
Plaintiffs argue the district court should have exercised supplemental
jurisdiction over the state law claims under 28 U.S.C. 1367(a). We review the
district courts decision to decline supplemental jurisdiction for abuse of
discretion. Gold v. Local 7 United Food and Commercial Workers Union
, 159
F.3d 1307, 1310 (10th Cir. 1998). The most common response to a pretrial
disposition of federal claims is to dismiss the state law claims without prejudice.
Roe v. Cheyenne Mountain Conference Resort, Inc.
, 124 F.3d 1221, 1237 (10th
Cir. 1997). The district court could decline supplemental jurisdiction after it
dismissed all of the claims over which it had original jurisdiction.
See 28 U.S.C.
1367(c)(3). There is no indication the district court abused its discretion in

declining supplemental jurisdiction over plaintiffs state law claims.
IV.
Plaintiffs contend the district court erred in finding their Rule 59 motion to
-6-
alter or amend the judgment was untimely and in treating the motion as one for
relief from judgment under Rule 60. Plaintiffs had ten days from the district
courts entry of judgment to file their motion to alter or amend. Fed. R. Civ. P.
59(e). The court entered its judgment on December 30, 1998, and plaintiffs filed
their motion to alter or amend on January 11, 1999. The district court erred in
finding the motion was untimely.
See Fed. R. Civ. P. 6(a) (when time allowed is
less than eleven days, do not include Saturdays, Sundays, or legal holidays).
Denial of a Rule 59 motion for untimely filing is harmless error if there
was no basis for granting the motion on its merits.
See Monod v. Futura, Inc. ,
415 F.2d 1170, 1175 (10th Cir. 1969). A Rule 59(e) motion to alter or amend the
judgment should be granted only to correct manifest errors of law or to present
newly discovered evidence.
Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir.
1997). In their motion, plaintiffs sought to set aside the judgment to allow them
to file a motion for leave to file an amended complaint, to reconsider dismissing
the non-federal defendants, and to clarify the judgment to indicate the dismissal
did not prejudice plaintiffs claims in state court. None of these constitute
manifest errors of law or newly discovered evidence. We conclude it was
harmless error to deny the motion as untimely.
Plaintiffs also argue the district court erred in not allowing them to file an
amended complaint. The record does not indicate that plaintiffs requested leave
-7-
to file an amended complaint. Their Rule 59 motion requested only that the court
set aside the judgment to provide them the opportunity to file a motion for leave
to file an amended complaint. Plaintiffs response to defendants motion to
dismiss also stated they should be allowed to seek leave to amend their complaint.
We find no error in the district courts failure to grant plaintiffs leave to amend
their complaint when plaintiffs did not make such a request.
See Glenn v. First
Nat. Bank in Grand Junction , 868 F.2d 368, 371 (10th Cir. 1989) (after motion to
dismiss granted, plaintiff must reopen case with Rule 59(e) or Rule 60(b) motion,
then file Rule 15 motion for leave to amend).
V.
Plaintiffs contend the district court erred in barring them from filing any
further proceedings against these Defendants relating to the same subject matter
in this district court. The court noted plaintiffs requested leave to amend their
complaint in the original action to include the United States as a party, but that
Judge Campos found those claims could not survive a motion to dismiss or a
motion for summary judgment. The court then found plaintiffs filed this
complaint in an attempt to circumvent Judge Campos ruling, concluding the
second filing was an abuse of process warranting filing restrictions.
Plaintiffs do not show their complaint in this case is any different than the
proposed amended complaint that Judge Campos did not allow them to file. The
-8-
filing sanction was narrowly tailored to fit the specific abuse. We conclude the
district court did not abuse its discretion in barring plaintiffs from filing further
proceedings in federal court in this matter.
AFFIRMED. Plaintiffs motion to supplement the record is DENIED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
-9-

Levy v. Swift Transp. Co., 10th Cir. (1999)

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ROBERT A. LEVY and PHYLLIS B.

(D.C. No. CIV-98-578-LH)

Before ANDERSON, KELLY and BRISCOE, Circuit Judges.

See Scaramucci v. Dresser Indus., Inc.

F.2d 1309, 1318 (10th Cir. 1970). We affirm.

Record, Doc. 40 at 11.

Burger , 964 F.2d 1065, 1070 (10th Cir. 1992).

455 (discussing circumstances requiring disqualification of judges). In denying

See Ordinance 59 Assn v. United States Dept of Interior Secretary

See Industrial Constructors

, 15 F.3d 963, 969 (10th Cir. 1994)

(citing United States v. Kubrick , 444 U.S. 111, 121 (1979)).

See Ballen v. Prudential Bache Sec., Inc.

See Crosswhite v. Brown , 424 F.2d 495, 497 (10th Cir.

Owen Equip. and

, 124 F.3d 1221, 1237 (10th

1367(c)(3). There is no indication the district court abused its discretion in

See Fed. R. Civ. P. 6(a) (when time allowed is

See Monod v. Futura, Inc. ,

Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir.

See Glenn v. First

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