                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 30 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    PETER V. SMILDE,

                Plaintiff-Appellant,

    v.                                                    No. 01-1126
                                                    (D.C. No. 98-WM-2654)
    MORTGAGE TEMPS, INC.;                                  (D. Colo.)
    NORWEST MORTGAGE, INC.;
    J. MICHAEL HIRSCH; JOHN
    ORMBERG; ATI TITLE CO.;
    NORWEST CORP.; MPLS
    DEPT/COMMISSION ON CIVIL
    RIGHTS,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before LUCERO, BARRETT , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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.

       The district court summarily denied plaintiff Peter V. Smilde’s “motion for

reconsideration,” and plaintiff appeals.     1
                                                  On appeal, we review only the district

court’s denial of the Rule 60(b) motion and not the underlying judgment itself,

Van Skiver v. United States     , 952 F.2d 1241, 1243 (10th Cir. 1991), and we are

free to affirm the district court on any basis supported by the record,       United

States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). After reviewing the

district court’s ruling for abuse of discretion,       Van Skiver , 952 F.2d at 1242, 1243,

we affirm.

       The order dismissing plaintiff’s underlying action was entered by the court

on February 23, 2000. Plaintiff contends that, although he had alerted the clerk of

the district court as to his change of address well before that date, the order was




1
        The Federal Rules of Civil Procedure do not recognize a “motion for
reconsideration.” Depending upon when it was filed, such a motion is treated as
either a motion to alter or amend the judgment filed pursuant to Rule 59(e), or as
a Rule 60(b) motion seeking relief from the judgment.    Van Skiver v. United
States , 952 F.2d 1241, 1243 (10th Cir. 1991). Because plaintiff filed his motion
more than ten days after the date of the judgment, it is properly treated as a Rule
60(b) motion. Id. Contrary to plaintiff’s contention in his reply brief, his motion
was not one brought under Rule 60(a) which allows for correction of clerical
mistakes. In his motion, plaintiff clearly requested that the district court amend
its judgment to allow a change of venue.

                                                 -2-
sent to the wrong address. He apparently did not receive a copy of the order until

after January 8, 2001. Shortly thereafter, plaintiff filed his Rule 60(b) motion.

      On appeal, plaintiff argues that the district court dismissed his motion as

untimely and that he should not be penalized for the delay attributable to the

district court clerk. Plaintiff mischaracterizes the action of the district court.

Plaintiff’s motion was summarily denied in a minute order. The court’s allusion

to untimeliness came later when it denied plaintiff permission to appeal in forma

pauperis.

      In his motion for reconsideration, plaintiff recited the facts surrounding his

late receipt of the district court order. He then requested the court to amend its

judgment to allow a transfer of venue to the District of Minnesota. Plaintiff had

never before requested a change of venue; indeed, he had opposed such a move at

every opportunity. A Rule 60(b) motion is an inappropriate vehicle by which to

advance arguments plaintiff could have made at the time defendants filed their

motions to dismiss.   See Van Skiver , 952 F.2d at 1243. Plaintiff does not suggest

that he would have made any different arguments in support of his request for

relief from judgment had he received the court’s order in a more timely fashion.




                                          -3-
Thus, even had plaintiff received the order of the district court sooner, his motion

would still have been denied.   2



      Plaintiff argues that this court may issue a mandamus order permitting the

change of venue. Mandamus is a drastic remedy, wholly inapposite to this case.

See Allied Chem. Corp. v. Daiflon, Inc.   , 449 U.S. 33, 34 (1980).

      Plaintiff’s motion for permission to appeal in forma pauperis is GRANTED.

The judgment of the United States District Court for the District of Colorado is

AFFIRMED.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




2
      In his reply brief, plaintiff cites Fed. R. Civ. P. 52(b) which has no
application here.

                                          -4-
