Professional Documents
Culture Documents
Elisabeth A. Shumaker
Clerk of Court
CHRISTOPHER YNOCENSIO
YSAIS,
Plaintiff-Appellant,
No. 09-2111
v.
BILL RICHARDSON, individually
and in his official capacity as
Governor, State of New Mexico;
MARY!DALE BOLSON, individually
and in her capacity as Cabinet
Secretary of the Department of
Children Youth and Family, State of
New Mexico; KAREN PRICE,
individually and in her official
capacity as Agency Head of Children
Youth and Family, State of New
Mexico; DAVID MONTOYA,
individually and in his official
capacity of Supervisor of Children
Youth and Family, State of New
Mexico; JULIE BODENNER,
individually and in her official
capacity of Supervisor of Children
Youth and Family, State of New
Mexico; JENNIFER LYNN,
individually and as an employee of
Children Youth and Family, State of
New Mexico; STATE OF NEW
MEXICO, SECOND JUDICIAL
DISTRICT COURT; FAMILY
COURT CLINIC DIVISION; BETH
ROTH, individually and in her
capacity as Supervisor of the Family
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After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
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.
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ANALYSIS
I. Jurisdiction
The issue of our appellate jurisdiction is complicated by the sheer number
of orders entered in this case and by Ysaiss tendency to file successive motions
for reconsideration. On February 20, 2009, the district court entered its amended
final judgment. The judgment adjudicated all of Ysaiss existing claims against
all defendants except those against his ex-wife, defendant Consuelo Leyba. 1 In its
judgment, the district court entered a certification under Fed. R. Civ. P. 54(b)
making the judgment final and immediately appealable even though claims
remained pending against Leyba.
The district courts entry of a proper Rule 54(b) certification started the
clock running for Ysais to file a notice of appeal. Wineman v. Fid. Capital
Appreciation Fund (In re Integra Realty Resources, Inc.), 262 F.3d 1089, 1107
(10th Cir. 2001) ([A] district courts proper certification of an order under Rule
54(b) ordinarily starts the clock running for purposes of filing notice of appeal.).
He had thirty days in which to appeal from the amended final judgment. See
Fed. R. App. P. 4(a)(1)(A).
In its judgment, the district court also dismissed defendant Haven House
without prejudice for failure of service.
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Two days later, on March 30, 2009, the district court entered final
judgment in favor of Leyba. 4 Ysais had thirty days, until April 29, 2009, to
appeal from this new final judgment in favor of Leyba.
On April 6, 2009, Ysais filed a second motion seeking reconsideration. He
asked the district court to reconsider (1) its March 30 order granting judgment to
Leyba and (2) its March 28 order denying his motion for reconsideration of the
amended final judgment. While this second motion for reconsideration tolled
Ysaiss time to appeal (1) from the denial of the first motion for reconsideration,
see Venable v. Haislip, 721 F.2d 297, 299 (10th Cir. 1983), and (2) from the final
judgment dismissing Leyba, it did not extend the time for filing a notice of appeal
from the underlying amended final judgment. See United States v. Marsh,
700 F.2d 1322, 1324-28 (10th Cir. 1983) (rejecting use of successive tolling
motions to obtain additional time to file notice of appeal). Any notice of appeal
from the amended final judgment therefore should have been filed on or before
April 27, 2009.
On April 29, 2009, two days after the deadline, Ysais finally filed a notice
of appeal. This notice essentially challenged every order entered in the case to
Although it appears that the case had now been completely resolved against
all defendants, perhaps out of an abundance of caution the district court also
entered a Rule 54(b) certification as to this judgment.
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motion for reconsideration. The notice of appeal is untimely as to the other final
orders. Having clarified our jurisdiction, we turn to the merits of the appeal.
II. Claims Against Leyba
The district court granted in part Leybas motion to dismiss to the limited
extent some of the claims against Leyba fall within the scope of N. M. Stat. Ann.
1978, 32A-4-3, which requires Leyba to report any suspicion of child abuse.
R. doc. 390, at 2. She then filed a motion seeking to be excused from any further
hearings in the case, which the district court construed as a motion to dismiss or
for summary judgment. It granted Ysais the opportunity to respond to the motion.
It later dismissed the remaining claims against Leyba, finding that the federal
claims had been resolved and that to the extent Ysais raised potential state-law
claims involving defamation, slander, libel, and malicious prosecution against
her, it would decline to exercise supplemental jurisdiction over them.
In his opening brief in this court, Ysais makes no argument specifically
tailored to the district courts orders dismissing the claims against Leyba. He
does not address immunity under 32A-4-5(B) or the district courts decision to
decline supplemental jurisdiction. He does argue that [a]ll defendant[s] are
included in all [his] arguments even if not specifically mentioned. Aplt.
Opening Br. at 25. But none of his broadly-presented arguments justify reversal
of the orders dismissing his claims against Leyba.
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Rule 59(e) motion, we find that it contains conclusory statements and meritless
arguments. The district court did not abuse its discretion in denying the motion.
IV. Filing Restrictions
Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under appropriate
circumstances. Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989).
Injunctions restricting further filing are appropriate where (1) the litigants
lengthy and abusive history is set forth; (2) the court provides guidelines as to
what the litigant must do to obtain permission to file an action; and (3) the
litigant received notice and an opportunity to oppose the courts order before it
is instituted. Id. at 353-54.
Ysais has a history of abusive and frivolous filings with this court. In Ysais
v. Ysais, No. 08-2219, he filed an appeal over which we lacked jurisdiction
seeking review of a district court order remanding his divorce case to state court.
Notwithstanding the explanation in our dismissal order that we lack jurisdiction to
consider such remand orders, after the appeal was dismissed he returned to
district court and filed a motion under Fed. R. Civ. P. 60(b), again seeking to
challenge the remand order. Before the district court had ruled on this motion, he
filed a second, premature appeal to this court, Ysais v. Ysais, No. 09-2196, which
was also subject to dismissal both because no final order existed and because as
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that Ysais has filed many motions unauthorized by the Rules of Appellate
Procedure and lacking in merit. All pending motions are DENIED.
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