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not binding precedent, except under the doctrines of law of the case, res judicata,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

F I LED

United States Court of Appeals

Tenth Circuit

June 23, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PETER MAMBO,

Plaintiff-Appellant,

v.

LARRY VEHAR; RALEY'S OF NEW

MEXICO, INC., a foreign corporation,

Defendants-Appellees.

No. 05-2356

(D.C. No. CIV-05-408-LH)

(D. N.M.)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

Plaintiff Peter Mambo appeals from orders of the district court granting

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

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

under 28 U.S.C. § 1291, we affirm.
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I. Background

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

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

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

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

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

judgment to the New Mexico 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 Mambo II, we will continue with that

terminology.

In Mambo 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

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

Mambo I complaint. On April 11, 2005, the defendants removed Mambo 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 Mambo II was foreclosed by the state court’s disposition of Mambo 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 Motion to Amend Order on August 31, 2005,
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and a Motion 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 Mexico

Supreme Court issued its decision in Mambo 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.” Mambo v. Raley’s of N.M., Inc., No. 28,892, slip op.

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

New Mexico 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, answers 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 Mambo I on Mambo II under New Mexico law. The court did so by

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

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

Vehar was not a party to Mambo 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 Mambo II was precluded by Mambo 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 Mambo I and

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

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

We are not persuaded by plaintiff’s arguments. We 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.
“The ten-day period prescribed by Rule 59(e) begins to run only upon entry

1

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).

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B. Plaintiff’s Post-Judgment Motions

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

Order filed August 31, 2005, and his Motion 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.

While plaintiff is technically correct that his motions were timely under

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

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 Mambo I did not effect the finality of the state court

judgment. It also rejected plaintiff’s contention that because of its disposition on
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summary judgment, Mambo 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 was properly granted. We likewise 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

Mary Beck Briscoe

Circuit Judge