RAYMOND P. MOORE, District Judge.
THIS MATTER is before the Court on "Defendant M. Julia Hook's Motion for Revision of Order Denying Motion to Dismiss United States' `Claim For Proceeds' against Hook; Request for Recusal and/or Disqualification of United States District Judge Raymond P. Moore; and Request for Oral Argument" ("Motion for Reconsideration") (ECF No. 190), requesting this Court to "reverse" its Order of September 25, 2015 ("Order") (ECF No. 183) granting, in part, Hook's "Motion to Dismiss United States' Amended Cross Claim" ("Motion to Dismiss") (ECF No. 99); to dismiss this case "in its entirety"; and to recuse itself from this proceeding. Upon consideration of the Motion for Reconsideration,
Briefly, in the Motion to Dismiss, Defendant Hook sought to strike the United States' "Claim for Proceeds" as untimely under Fed. R. Civ. P. 12(f), and to dismiss such claim for lack of subject matter jurisdiction, failure to join an indispensable party, and failure to state a claim. (ECF No. 99.) No dismissal of LNV's claims was sought. The United States' response stated, among other things, it filed no claim in this matter against Hook or Smith, but only set forth its "claim" as to why it is entitled to a distribution of proceeds from the sale of the real property at issue in this case. (ECF No. 107.)
The Court granted Hook's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(f), striking the Claim for Proceeds to the extent it asserted a claim against Hook. The Court did not strike the Claim for Proceeds to the extent it sets forth the United States' position as to why it is entitled to a distribution of the proceeds, in defense of LNV's claims. The Court also reasoned that "[e]ven if the United States had not included the Claim [for Proceeds], it would still be entitled to seek the enforcement of its liens in this case, a right which continues to exist notwithstanding the striking of the Claim [for Proceeds] insofar as it purports to be a claim against Hook." (ECF No. 183, page 4 n.1.) As any claim was stricken, the Court denied Hook's requests for dismissal of such claim as moot.
In her Motion for Reconsideration, Hook requests this Court not only to reverse its Order but also to grant her relief which was not requested in the Motion to Dismiss, i.e., dismissal of this case (including LNV's claims) "in its entirety." (ECF No. 190, page 8, emphasis in original.)
A "motion for reconsideration" is not specifically recognized in the Federal Rules of Civil Procedure. See Hatfield v. Bd. of County Comm'rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995). Nonetheless, "the court retains the power to alter rulings until final judgment is entered on a cause." Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir. 1980) (citing Fed.R.Civ.P. 54(b)). Such motions may not "merely advance[] new arguments" or provide "supporting facts which were available at the time of the original motion." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Instead, the court considers whether reconsideration is appropriate due to an intervening change in the controlling law, new evidence previously unavailable, or the need to correct a legal error. See id.
Hook contends the Order is clearly erroneous, contrary to law, and a gross abuse of discretion,
The Court will first address Hook's arguments concerning LNV. Hook's Motion to Dismiss challenged the Court's jurisdiction over the United States' "cross claim," not over LNV's claims. Thus, the Court's Order, which Hook seeks to reverse, did not address any jurisdictional issues concerning LNV's claims.
Next, as to Hook's arguments directed at the United States, upon the striking of the United States' claim against Hook, any jurisdictional issue over any claim was moot as there was no claim for which jurisdiction was required. Accordingly, Hook fails to show a sufficient basis to support a reconsideration — or reversal — of the Order declining to address any jurisdictional issue.
Finally, the application of 26 U.S.C. § 7403 and the sufficiency of the United States' allegations to comply (or the necessity of compliance) with § 7403 were not raised in the Motion to Dismiss. Reconsideration of a matter that was not considered is improper.
Hook seeks to disqualify this Court from proceeding further in this case, but apparently only after deciding her Motion to Reconsider. The Court finds no basis for its disqualification.
Pursuant to 28 U.S.C. § 455(a), "[a]ny . . . judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Further, the judge shall disqualify himself "[w]here he has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1). A judge's duty to recuse is a continuing one, "before, during, or, in some circumstances, after a proceeding, if the judge concludes that sufficient factual grounds exist to cause an objective observer reasonably to question the judge's impartiality." United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993) (emphasis added); U.S. v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000). The issue is "whether a reasonable person, knowing all of the relevant facts, would harbor doubts about the judge's impartiality." Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (quotation marks omitted, citing Cooley, 1 F.3d at 993). "The statute is not [, however,] intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice." Cooley, 1 F.3d at 993; Nichols, 71 F.3d at 351. And, "adverse rulings cannot in themselves form the appropriate grounds for disqualification." Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (quotation marks and citation omitted); Scott v. Rubio, 516 F. App'x 718, 723 (10th Cir. 2013). The decision to recuse is committed to the sound discretion of the district court. Cooley, 1 F.3d at 994; Phillips v. The Pepsi Bottling Group, 373 F. App'x 896, 898 (10th Cir. 2010) (discussing § 455(b)(1)).
Hook contends this Court has demonstrated bias against Hook by refusing to dismiss the United States' Claim for Proceeds against Hook for lack of subject matter jurisdiction and for failure to comply with 26 U.S.C. § 7403. As previously stated, any claim against Hook has been stricken; therefore, there is no claim to dismiss. Moreover, Hook's Motion to Dismiss never sought dismissal based on 26 U.S.C. § 7403; therefore, any "refusal" to dismiss on this basis could hardly serve to support the assertion of bias.
Based on the foregoing, the Court ORDERS that Defendant M. Julia Hook's Motion for Revision of Order Denying Motion to Dismiss United States' "Claim for Proceeds" against Hook; Request for Recusal and/or Disqualification of United States District Judge Raymond P. Moore; and Request for Oral Argument" (ECF No. 190) is DENIED.