                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         June 23, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    PETER MA M B O,

                Plaintiff-Appellant,

    v.                                                    No. 05-2356
                                                   (D.C. No. CIV-05-408-LH)
    LARRY VEH AR ; RA LEY'S OF NEW                         (D . N.M .)
    M EXICO, INC., a foreign corporation,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.




         Plaintiff Peter M ambo appeals from orders of the district court granting

summary judgment to defendants Larry Vehar and Raley’s of New M exico, Inc.

(Raley’s) and denying his post-judgment motions. Exercising our jurisdiction

under 28 U.S.C. § 1291, we affirm.




*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
                                  I. Background

      On October 22, 2002, plaintiff sued Raley’s, his former employer, in

New M exico state court asserting one count of race/national origin discrimination

under the New M exico Human Rights Act. The parties have denominated that

case M ambo I. Raley’s moved for summary judgment in M ambo I, and its motion

was granted on June 17, 2004. Plaintiff appealed the order granting summary

judgment to the New M exico Supreme Court, and while that appeal was pending,

on December 30, 2004, he filed the instant case, also in state court. Since the

parties have denominated this case M ambo II, we will continue with that

terminology.

      In M ambo II, plaintiff asserts a single count of discrimination under

42 U.S.C. § 1981. In addition to Raley’s, he named Larry Vehar, a Raley’s

employee and his former manager. The factual allegations contained in the

M ambo II complaint are identical in all material respects to those set forth in the

M ambo I complaint. On April 11, 2005, the defendants removed M ambo II to

federal district court and filed a simultaneous motion to dismiss, alternatively

styled a motion for summary judgment. Defendants argued that plaintiff’s claim

in M ambo II was foreclosed by the state court’s disposition of M ambo I pursuant

to the doctrines of collateral estoppel and res judicata. The district court treated

defendants’ request as a motion for summary judgment and granted the motion on

August 18, 2005. Plaintiff filed a M otion to Amend Order on August 31, 2005,

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and a M otion to Request Relief From Order on September 1, 2005, both of which

were denied. This appeal followed.

      Since plaintiff filed his Notice of Appeal in this action, the New M exico

Supreme Court issued its decision in M ambo I. The court affirmed the trial

court’s grant of summary judgment to Raley’s, holding that plaintiff’s claim that

he was subject to discriminatory remarks about his race and national origin was

“unsupported by any record evidence,” and that he “fail[ed] to show pretext or

unlawful discrimination.” M ambo v. Raley’s of N.M ., Inc., No. 28,892, slip op.

at 5 (N.M . M ar. 20, 2006). M ambo filed a motion for rehearing in the

New M exico Supreme Court, which was denied on April 18, 2006.

                                   II. Discussion

      “On appeal, we review the district court’s grant of summary judgment

de novo, applying the same legal standards as employed by the district court.

In doing so, we review the record in the light most favorable to the party

opposing summary judgment.” B-S Steel of Kan., Inc. v. Tex. Indus., 439 F.3d

653, 660 (10th Cir. 2006) (quotation omitted). The familiar standard requires

that summary judgment be granted if “the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law .” Fed. R. Civ. P. 56(c).




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      A. Summary Judgment

      Defendants’ motion required the district court to consider the preclusive

effect of M ambo I on M ambo II under New M exico law. The court did so by

carefully analyzing each of the elements of the doctrine of res judicata as set forth

in M yers v. Olson, 676 P.2d 822, 824 (N.M . 1984). It found that (1) although

Vehar was not a party to M ambo I, Raley’s and Vehar were in privity for purposes

of res judicata; (2) the subject matter of each suit was identical; (3) the character

and capacity of the parties was the same in each suit; and (4) both suits involved

the same “cause of action” for purposes of res judicata notwithstanding the

technical differences between plaintiff’s state and federal claims. Since all the

elements of res judicata were met, the district court concluded that plaintiff’s

claim in M ambo II was precluded by M ambo I and therefore dismissed the case.

      On appeal, plaintiff challenges primarily the district court’s finding that

Vehar was in privity with Raley’s. He also argues that his claims in M ambo I and

M ambo II were different and that there was no final judgment for purposes of

res judicata because his appeal in M ambo I was pending when he filed M ambo II.

W e are not persuaded by plaintiff’s arguments. W e agree with the well-reasoned

opinion of the district court that the elements of res judicata have been met under

the circumstances of this case and that plaintiff’s § 1981 claim is barred.

Therefore, we affirm the district court’s grant of summary judgment to defendants

for substantially the same reasons articulated in its August 18, 2005, order.

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      B. Plaintiff’s Post-Judgment M otions

      Plaintiff also challenges the district court’s denial of his M otion to Amend

Order filed August 31, 2005, and his M otion to Request Relief From Order filed

September 1, 2005. He argues that the court erred in finding his motions

time-barred under Rule 59 and that he should have been permitted to file an

amended complaint and sur-reply in opposition to defendants’ motion for

summary judgment.

      W hile plaintiff is technically correct that his motions were timely under

Rule 59(e), 1 his appeal nonetheless fails because the substantive bases of his

post-judgment motions lacked merit. As a pro se litigant, the district court

construed his motions in the most favorable light possible and decided them on

the merits pursuant to Rule 60(b). The court concluded that its dismissal of

plaintiff’s claims based on res judicata was not a mistake of law because

plaintiff’s pending appeal in M ambo I did not effect the finality of the state court

judgment. It also rejected plaintiff’s contention that because of its disposition on



1
       “The ten-day period prescribed by Rule 59(e) begins to run only upon entry
of a final judgment.” Anderson v. Deere & Co., 852 F.2d 1244, 1246 (10th Cir.
1988). In this case, it appears that the district court never entered a separate
judgment pursuant to Rule 58, and the August 18, 2005, order does not satisfy
Rule 58’s separate document requirement. See Clough v. Rush, 959 F.2d 182, 185
(10th Cir. 1992) (holding that a district court order containing detailed legal
analysis and reasoning, standing alone, could not trigger appeal process).
Under these circumstances, judgment was not entered for purposes of Rule 59
until 150 days after entry of the court’s order in the civil docket.
See Fed. R. Civ. P. 58(b)(2)(B).

                                         -5-
summary judgment, M ambo I was not decided on the merits. The court concluded

that plaintiff had failed to show extraordinary circumstances warranting relief

under Rule 60(b) and that therefore, the filing of an amended complaint was not

permissible.

      Our standard of review is abuse of discretion, whether the district court

construed plaintiff’s motions pursuant to Rule 59(e) or 60(b). Adams v. Reliance

Standard Life Ins. Co., 225 F.3d 1179, 1186 n.5 (10th Cir. 2000) (Rule 59(e));

Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir. 2006) (Rule

60(b)). In this case, plaintiff’s post-judgment motions simply rehashed arguments

made in response to defendants’ motion for summary judgment, which we have

already held w as properly granted. W e likew ise conclude that the district court

acted within its discretion in denying the post-judgment motions.

      The judgment of the district court is therefore AFFIRMED.


                                                     Entered for the Court



                                                     M ary Beck Briscoe
                                                     Circuit Judge




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