Ryan Carr; Jessica Carr v. REMINGTON ARMS COMPANY, LLC, f/k/a Remington Arms Company, Inc.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
RYAN CARR; JESSICA CARR,
Plaintiffs - Appellants,
v.
REMINGTON ARMS COMPANY, LLC,
f/k/a Remington Arms Company, Inc.,
Defendant - Appellee.
No. 19-6046
(D.C. No. 5:16-CV-01153-SLP)
(W.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, LUCERO, Senior Circuit Judge, and
MATHESON, Circuit Judge.
_________________________________
This appeal arises out of the district court’s dismissal with prejudice of a
diversity action pursuant to an Administrative Closing Order. Plaintiffs Ryan and
Jessica Carr (“the Carrs”) contend on appeal that the district court abused its
discretion in denying their motion to reinstate the case under Fed. R. Civ. P. 60(b)
and their subsequent motion to vacate, or in the alternative, amend the judgment
pursuant to Fed. R. Civ. P. 59(e) and 60(b). Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court’s denial of the Carrs’ motion to reinstate. We
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 4, 2021
Christopher M. Wolpert
Clerk of Court
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dismiss the Carrs’ challenge to the district court order denying their motion to vacate
for lack of appellate jurisdiction.
The Carrs filed a complaint against Defendant Remington Arms Company
(“Remington”) in Oklahoma state court on September 7, 2016, asserting tort claims
related to the alleged misfiring of a shotgun. Remington removed the case to the
Western District of Oklahoma on diversity grounds. Following Remington’s
initiation of bankruptcy proceedings, the district court entered an Administrative
Closing Order. The Order provided that either party could file a motion to reopen the
action within thirty days of the bankruptcy proceeding’s completion, and that the
action would be dismissed with prejudice if neither party moved to reopen in that
period. The bankruptcy proceedings terminated with a Final Decree entered on
July 16, 2018.
On October 12, 2018, nearly two months after the district court’s thirty-day
deadline passed, the Carrs filed a motion to reinstate their tort case (“motion to
reinstate”), arguing that the case should be reinstated because they received
insufficient notice of the completion of Remington’s bankruptcy proceedings. The
district court disagreed and denied the motion on February 22, 2019, determining that
relief under Rule 60(b) was unwarranted because the Carrs failed to monitor the
bankruptcy proceedings. On March 21, 2019, the Carrs filed a motion to vacate or, in
the alternative, amend (“motion to vacate”) the district court’s February 22, 2019
order, pursuant to Rules 59(e) and 60(b). They filed a timely notice of appeal of the
February 22, 2019 order on the same day. On March 20, 2020, the district court
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denied the motion to vacate, rejecting the Carrs’ argument that Remington’s
bankruptcy proceedings were incomplete.1 The Carrs did not file a new or amended
notice of appeal addressing the district court’s order denying their motion to vacate.
We review a district court’s decisions under Rule 60(b) for abuse of discretion.
Wright ex rel. Tr. Co. of Kansas v. Abbott Lab’ys., Inc., 259 F.3d 1226, 1235 (10th
Cir. 2001). Under this high standard, “we will not alter a trial court's decision unless
it can be shown that the court's decision was an arbitrary, capricious, whimsical, or
manifestly unreasonable judgment.” Id. at 1236 (quotation omitted). In reviewing a
denial of Rule 60(b) relief, “our review is meaningfully narrower than review of the
merits of a direct appeal,” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289
(10th Cir. 2005) (quotation omitted), and we may reverse only if we find “a complete
absence of a reasonable basis and [are] certain that the . . . decision is wrong.” Id.
(quotation omitted). Although we might not have decided this case precisely as the
district court did, the Carrs have not demonstrated that the district court abused its
discretion in denying their motion to reinstate. Specifically, the district court’s
finding that the Carrs’ failure to monitor Remington’s bankruptcy proceedings did
not constitute excusable neglect under Rule 60(b)(1) is within the bounds of Pioneer
Inv. Servs. Co. v. Brunswick Assoc. Ltd. P’ship, 507 U.S. 380 (1993), even if we
would have weighed the Pioneer factors differently. See also United States v. Torres,
1 The Carrs filed a second motion to reinstate with the district court while their
motion to vacate was pending. The district court denied this second motion as moot
as part of its March 20, 2020 Order denying the motion to vacate.
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372 F.3d 1159, 1163 (10th Cir. 2004) (“Nonetheless, fault in the delay remains a very
important factor—perhaps the most important single factor—in determining whether
neglect is excusable.”) (quotation omitted); 358 Liberation, LLC v. County Mutual
Ins. Co., 772 F. App’x 703, 704 (10th Cir. 2019) (unpublished) (affirming a district
court decision denying a Rule 60(b) motion that focused only on the third Pioneer
factor and did not address the other factors).2
With respect to the Carrs’ motion to vacate, “[w]hen an appellant challenges
an order ruling on a motion governed by Appellate Rule 4(a)(4)(B)(ii), a new or
amended notice of appeal is necessary. . . .” Husky Ventures, Inc. v. B55 Invs., Ltd.,
911 F.3d 1000, 1010 (10th Cir. 2018). The Carrs’ motion to vacate is governed by
this rule. See Fed. R. App. P. 4(a)(4)(A)(iv), (vi). They did not file a new or
amended notice of appeal challenging the denial of that motion. Absent a notice of
appeal designating the order denying their motion to vacate, we lack appellate
jurisdiction. Husky Ventures, Inc., 911 F.3d at 1008-09.
For the foregoing reasons, we AFFIRM the district court’s order denying the
Carrs’ motion to reinstate. The Carrs’ challenge to the district court’s order denying
2 Nor did the district court abuse its discretion in denying the Carrs’ motion to
reinstate under Rule 60(b)(3) or 60(b)(6). The Carrs failed to establish fraud,
misrepresentation, or misconduct by Remington for purposes of Rule 60(b)(3), which
requires some measure of intent to deceive. See Zurich N. Am., 426 F.3d at 1292.
As to Rule 60(b)(6), the Carrs have not demonstrated “extraordinary circumstances
suggesting that the party is faultless in the delay.” Pioneer, 507 U.S. at 393
(quotation omitted).
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their motion to vacate is DISMISSED for lack of appellate jurisdiction.
Entered for the Court
Carlos F. Lucero
Senior Circuit Judge
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