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Persimmon Ridge, LLC v. Zinke

United States District Court, N.D. Oklahoma

July 31, 2009

PERSIMMON RIDGE, LLC, Plaintiff,
v.
RYAN ZINKE, in his official capacity as Secretary of the United States Department of Interior

          OPINION AND ORDER

          TERENCE C. KERN UNITED STATES DISTRICT JUDGE.

         Before the Court is the Motion to Alter and Amend Court's Opinion and Order and Vacate Judgment filed by Plaintiff, Persimmon Ridge, LLC (“Persimmon”). Docs. 44, 45. Defendants Ryan Zinke, in his official capacity as Secretary of the United States Department of Interior the United States Bureau of Indian Affairs (“DOI”), and Weldon Louder, in his official capacity as Director of the United States Bureau of Indian Affairs (“BIA”), oppose the motion. Doc. 48.

         I. Background

         In its Opinion and Order of September 18, 2018, the Court granted Defendants' motion to Dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 42. In so doing, the Court rejected Plaintiff's argument that it was entitled to equitable tolling of the six- year statute of limitations set forth in 28 U.S.C. § 2401(a). Id. at 10. The Court also denied Plaintiff's Second Motion to Amend Complaint, finding the proposed amended complaint would be futile, because Plaintiff had failed to exhaust its administrative remedies with respect to the claim and the proposed amended complaint would therefore be subject to dismissal. Id. at 12.

         In its Motion to Alter and Amend, Persimmon contends that:

• the Court, in its Opinion and Order, erroneously relied on Chance v. Zinke, 898 F.3d 1025 (10th Cir. 2018);
• the Amended Complaint's allegations of fraudulent concealment were sufficient to invoke equitable tolling of the statute of limitations at the pleading stage or class action tolling;
• the Court erred in treating older permit approvals as final agency actions; and
• the Court erred in refusing to apply class-action tolling based on Donelson v. United States, 14-CV-316-JHP-TLW, Doc. 45.

         II. Standard of Review

         A motion to reconsider may be granted on the following grounds: “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (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) (citing Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)). In other words, when the court has “misapprehended the facts, a party's position, or the controlling law, ” a motion to reconsider is appropriate. Id.

         III. Analysis

         A. Reliance on Chance

         Citing United States v. Ward, 718 Fed.Appx. 757 (10th Cir. 2018) (per curium), and Bell v. Thompson, 545 U.S. 794, 801 (2005), Persimmon argues the Court erred in relying on Chance because, at the time the Court entered its order, no mandate had been issued in that case. However, neither case supports this argument. In Ward, the appellate court noted the case had been held in abatement pending issuance of the mandate in a related case. 718 Fed.Appx. at 757. In Bell, the Supreme Court stated. that an appellate court has the power to reconsider its opinion. 545 U.S. at 801. Neither case, however, addressed the propriety of ...


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