                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         SEP 21 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 ROBERT A. LEVY and PHYLLIS B.
 LEVY,

          Plaintiffs-Appellants,
 v.                                                     No. 99-2167
 SWIFT TRANSPORTATION                           (D.C. No. CIV-98-578-LH)
 COMPANY, INC., Sparks, Nevada;                         (D. N.M.)
 SWIFT TRANSPORTATION
 COMPANY, INC., Phoenix, Arizona;
 JERRY C. MOYES; KEITH DALE
 NICHOLS; EDDIE LEE TIGGS;
 UNITED STATES OF AMERICA;
 CENTRAL INTELLIGENCE
 AGENCY,

          Defendants-Appellees.


                             ORDER AND JUDGMENT         *




Before ANDERSON, KELLY and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of



      *
       This order and judgment is not binding precedent, except under the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.
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.

       Plaintiffs Robert A. Levy and Phyllis B. Levy appeal the district court’s

orders denying their motion for assignment of judge, dismissing the case, denying

their Rule 59(e) motion to alter or amend the judgment, and barring them from

filing further federal proceedings in this matter. Plaintiffs also argue the district

court erred in refusing to allow discovery before dismissing the case. However,

this order is not included in plaintiffs’ notice of appeal and therefore is not

properly before this court for review.   See Scaramucci v. Dresser Indus., Inc.   , 427

F.2d 1309, 1318 (10th Cir. 1970). We affirm.

                                           I.

       Plaintiffs originally brought an action in 1997 for damages as a result of a

motor vehicle collision on July 20, 1994, and for other damages arising out of a

conspiracy. Judge Santiago Campos dismissed the case without prejudice.

Plaintiffs again filed a complaint in May 1998 in the present action, which was

substantially the same as the original complaint but which added the United States

and the CIA as parties and contained additional conspiracy allegations. Judge

LeRoy Hansen dismissed the case for lack of subject matter jurisdiction and

ordered: “Plaintiffs are prohibited from filing any further proceedings against

these Defendants relating to the same subject matter in this district court.”


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Record, Doc. 40 at 11.

                                             II.

       Plaintiffs argue the district court erred in denying their motion to assign

this case to Judge Campos, who presided over the first case. We review a district

court’s denial of a motion to recuse for abuse of discretion.      United States v.

Burger , 964 F.2d 1065, 1070 (10th Cir. 1992).

       In their motion, plaintiffs argued it would be appropriate to assign the case

to Judge Campos because he was familiar with the case. Plaintiffs made no

allegations of bias, prejudice, or impartiality by Judge Hansen.      See 28 U.S.C.

§ 455 (discussing circumstances requiring disqualification of judges). In denying

the motion, Judge Hansen found the request was not based on disqualification or

any other justifiable reason. Plaintiffs now allege Judge Hansen was biased, as

evidenced by his rulings against them. However, these later rulings do not show

Judge Hansen was biased at the time he denied the motion to recuse or, for that

matter, at the time the rulings were entered. The district court did not abuse its

discretion in denying the motion to assign the case to Judge Campos.

                                            III.

       Plaintiffs argue the district court erred in dismissing their complaint against

all defendants. The court dismissed the case for lack of diversity and for failure

to state a claim under Fed. R. Civ. P. 12(b)(6). We review this dismissal de novo.


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See Ordinance 59 Ass’n v. United States Dep’t of Interior Secretary        , 163 F.3d

1150, 1152 (10th Cir. 1998). Plaintiffs do not appeal the court’s dismissal of

defendant CIA for lack of subject matter jurisdiction under the Federal Tort

Claims Act.

       The district court found plaintiffs failed to file their complaint against the

United States within the statute of limitations. A tort claim against the United

States must be presented in writing to the appropriate federal agency within two

years after the claim accrues. 28 U.S.C. § 2401(b). The statute of limitations

began to run when plaintiffs knew or had reason to know of the existence and

cause of the injury that is the basis of their action.    See Industrial Constructors

Corp. v. United States Bureau of Reclamation         , 15 F.3d 963, 969 (10th Cir. 1994)

(citing United States v. Kubrick , 444 U.S. 111, 121 (1979)).

       The accident occurred July 20, 1994. Plaintiffs contend they did not know

of the CIA connection until July 19, 1995, and they sent timely notice of their

claim to the CIA on May 22, 1997. They contend the statute of limitations was

tolled because of fraudulent concealment. To toll the statute of limitations for

fraudulent concealment, plaintiffs must show: (1) the United States used

fraudulent means; (2) successful concealment from plaintiffs; and (3) plaintiffs

did not know or by the exercise of due diligence could not have known that they

might have a cause of action.      See Ballen v. Prudential Bache Sec., Inc.   , 23 F.3d


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335, 336-37 (10th Cir. 1994). The district court found plaintiffs failed to show

they could not have discovered the cause of action by the exercise of due

diligence.

       Plaintiffs made conclusory allegations that the CIA fraudulently concealed

its participation in the accident. Even accepting these allegations as true,

plaintiffs made no showing they could not have known of the CIA’s alleged

involvement through the exercise of due diligence. Plaintiffs asserted they did

not know of the CIA’s connection until someone sent them a book detailing the

conspiracy, yet they fail to show they could not have discovered this book earlier

through the exercise of due diligence.

       Plaintiffs allege the United States is engaged in a continuing conspiracy

against them and the statute of limitations did not begin to run until the date of

the last tortious act.   See Crosswhite v. Brown , 424 F.2d 495, 497 (10th Cir.

1970). The district court found all of plaintiffs’ claims of conspiracy occurred

before the summer of 1994. The court further found plaintiffs’ conspiracy claim

consisted of conclusory allegations that failed to state a claim for continuing

conspiracy. A review of the record confirms the court’s conclusion. Plaintiffs

failed to allege a continuing conspiracy that would toll the statute of limitations

or state a cause of action. The district court did not err in dismissing plaintiffs’

claims against the United States.


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       After dismissing plaintiffs’ claims against the United States and the CIA,

the district court dismissed the remaining defendants for lack of complete

diversity. Diversity jurisdiction requires complete diversity -- each defendant

must be a citizen of a different state than plaintiff.   Harris v. Illinois-California

Express, Inc. , 687 F.2d 1361, 1366 (10th Cir. 1982) (quoting          Owen Equip. and

Erection Co. v. Kroger , 437 U.S. 365 (1978)). Plaintiffs and two defendants were

residents of Texas, creating a lack of diversity.

       Plaintiffs argue the district court should have exercised supplemental

jurisdiction over the state law claims under 28 U.S.C. § 1367(a). We review the

district court’s decision to decline supplemental jurisdiction for abuse of

discretion. Gold v. Local 7 United Food and Commercial Workers Union             , 159

F.3d 1307, 1310 (10th Cir. 1998). The most common response to a pretrial

disposition of federal claims is to dismiss the state law claims without prejudice.

Roe v. Cheyenne Mountain Conference Resort, Inc.         , 124 F.3d 1221, 1237 (10th

Cir. 1997). The district court could decline supplemental jurisdiction after it

dismissed all of the claims over which it had original jurisdiction.       See 28 U.S.C.

§ 1367(c)(3). There is no indication the district court abused its discretion in

declining supplemental jurisdiction over plaintiffs’ state law claims.

                                              IV.

       Plaintiffs contend the district court erred in finding their Rule 59 motion to


                                               -6-
alter or amend the judgment was untimely and in treating the motion as one for

relief from judgment under Rule 60. Plaintiffs had ten days from the district

court’s entry of judgment to file their motion to alter or amend. Fed. R. Civ. P.

59(e). The court entered its judgment on December 30, 1998, and plaintiffs filed

their motion to alter or amend on January 11, 1999. The district court erred in

finding the motion was untimely.     See Fed. R. Civ. P. 6(a) (when time allowed is

less than eleven days, do not include Saturdays, Sundays, or legal holidays).

       Denial of a Rule 59 motion for untimely filing is harmless error if there

was no basis for granting the motion on its merits.   See Monod v. Futura, Inc. ,

415 F.2d 1170, 1175 (10th Cir. 1969). A Rule 59(e) motion to alter or amend the

judgment should be granted only “to correct manifest errors of law or to present

newly discovered evidence.”     Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir.

1997). In their motion, plaintiffs sought to set aside the judgment to allow them

to file a motion for leave to file an amended complaint, to reconsider dismissing

the non-federal defendants, and to clarify the judgment to indicate the dismissal

did not prejudice plaintiffs’ claims in state court. None of these constitute

manifest errors of law or newly discovered evidence. We conclude it was

harmless error to deny the motion as untimely.

       Plaintiffs also argue the district court erred in not allowing them to file an

amended complaint. The record does not indicate that plaintiffs requested leave


                                            -7-
to file an amended complaint. Their Rule 59 motion requested only that the court

set aside the judgment to provide them the opportunity to file a motion for leave

to file an amended complaint. Plaintiffs’ response to defendants’ motion to

dismiss also stated they should be allowed to seek leave to amend their complaint.

We find no error in the district court’s failure to grant plaintiffs leave to amend

their complaint when plaintiffs did not make such a request.    See Glenn v. First

Nat. Bank in Grand Junction , 868 F.2d 368, 371 (10th Cir. 1989) (after motion to

dismiss granted, plaintiff must reopen case with Rule 59(e) or Rule 60(b) motion,

then file Rule 15 motion for leave to amend).

                                           V.

      Plaintiffs contend the district court erred in barring them “from filing any

further proceedings against these Defendants relating to the same subject matter

in this district court.” The court noted plaintiffs requested leave to amend their

complaint in the original action to include the United States as a party, but that

Judge Campos found those claims could not survive a motion to dismiss or a

motion for summary judgment. The court then found plaintiffs filed this

complaint in an attempt to circumvent Judge Campos’ ruling, concluding the

second filing was an abuse of process warranting filing restrictions.

      Plaintiffs do not show their complaint in this case is any different than the

proposed amended complaint that Judge Campos did not allow them to file. The


                                           -8-
filing sanction was narrowly tailored to fit the specific abuse. We conclude the

district court did not abuse its discretion in barring plaintiffs from filing further

proceedings in federal court in this matter.

      AFFIRMED. Plaintiffs’ motion to supplement the record is DENIED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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