Crawford v. Nuclear Medicine Technology Certification Board, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-02300-KAS
JERROD CRAWFORD,
Plaintiff,
v.
THE NUCLEAR MEDICINE TECHNOLOGY CERTIFICATION BOARD,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This 	matter 	is 	before 	the 	Court 	on 	Plaintiff’s 	Response 	to 	Dismissal 	of
Reconsideration [ECF No. 70] (the “Motion”) [#71]. Plaintiff is proceeding pro se,1 and
therefore, the Court liberally construes Plaintiff’s filing as a Motion for Reconsideration.
Defendant did not file a Response, and the time in which to do so has elapsed. See
D.C.COLO.LCivR 7.1(d). After briefing closed, Plaintiff also filed an Addendum [#72] (the
“Addendum”) to the Motion. The Court has reviewed the briefs, the entire case file, and
the applicable law. For the following reasons, the Motion [#71] is DENIED.2
1 The Court must liberally construe the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor
“supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
2 The parties consented to proceed before the undersigned for all proceedings pursuant to 28
U.S.C. § 636(c) and D.C.COLO.LCivR 72.2. See Consent [#21]; Order of Reference [#22].
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I. 	Background
The factual background of this case has been set forth in the Court’s various
orders, see, e.g., Orders [#63, #70], and the Court repeats it here only to the extent
necessary to resolve the Motion [#71].
Plaintiff is a technologist who previously practiced nuclear medicine and molecular
imaging in Colorado. Am. Compl. [#48] at 2 ¶ 11.3 Defendant, The Nuclear Medicine
Technology Certification Board, Inc. is one of two certifying agencies in the nuclear
medicine and molecular imaging field. Id., ¶ 9. Plaintiff obtained his certification through
Defendant. See id. ¶¶ 10-12.
Defendant placed Plaintiff’s certification on probation for twelve months after
investigating an ethical complaint regarding alleged Health Insurance Portability and
Accountability Act (“HIPAA”) violations lodged by Plaintiff’s previous employer. Id. at 3-4
¶¶ 16, 20. During the investigation, Defendant solicited evidence from both Plaintiff and
Plaintiff’s previous employer. Id. at 4 ¶ 20. After learning of the probation decision to
revoke his certification, Plaintiff appealed, submitting “evidence of possible retaliation by
[his previous employer] in making its frivolous ethics complaint” against him. Id. at 4 ¶ 22.
Plaintiff’s appeal was unsuccessful, and on February 27, 2022, Defendant revoked his
certification. Id. at 4 ¶ 23, 19-20 ¶ 51. As a result of the revocation of his certification,
Plaintiff is no longer able to practice nuclear medicine in Colorado. Id. at 2-3 ¶¶ 11-12.
In his Amended Complaint [#48], Plaintiff asserted five claims against Defendant:
(1) breach of contract/bad faith, id. at 7-16; (2) gross material negligence, id. at 16-18; (3)
3 Plaintiff restarts paragraph numbering on page seven of his Amended Complaint [#48]. To avoid
confusion, in this Order, the Court cites to page numbers as well as paragraph numbers.
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fraudulent misrepresentation, id. at 18-21; (4) infliction of emotional distress, id. at 21-22;
and (5) “prima facie tort,” id. at 22-24. On March 23, 2025, the Court granted Defendant’s
Motion to Dismiss Plaintiff’s Amended Complaint [#51] as to all of Plaintiff’s claims. Order
[#63] at 21-22. The Clerk of Court entered Final Judgment [#64] on March 25, 2025.
The following day, Plaintiff filed his first Motion for Reconsideration [#65], limiting
his challenge to the Court’s dismissal of his breach of contract claim. In that Motion,
Plaintiff argued (1) he was previously unaware of the Erie Doctrine from Erie Railroad
Company v. Tompkins, 304 U.S. 64 (1938), which would have allowed him to rely on state
law; (2) he had not included supporting documents with his Amended Complaint [#48]
because he assumed “that he would have an opportunity to provide his more detailed
data at discovery for the Court to review”; and (3) the Court misunderstood “Plaintiff’s
argument that he was being further punished without reconsideration” when Defendant
notified 	him 	that 	the 	revocation 	of 	his 	certification 	was 	permanent. 	Motion 	for
Reconsideration [#65] at 1-3. The Court rejected these arguments and denied the Motion.
Order [#70].
In the present Motion [#71], Plaintiff asks the Court to reconsider its denial of his
first Motion to Reconsider based on previously unavailable evidence and the need to
correct clear error or prevent manifest injustice. Motion [#71] at 2.
II. 	Legal Standard
A 	litigant 	subject 	to 	an 	adverse 	final 	order 	or 	judgment, 	and 	who 	seeks
reconsideration by the district court of that adverse judgment, may “file either a motion to
alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief
from the judgment pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952
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F.2d 1241, 1243 (10th Cir.1991). A motion for reconsideration filed more than 28 days
after the final judgment in an action should be considered under Rule 60(b). Cf. Ascent
Classical Acads. v. Ascent Classical Acad. Charter Schs., Inc., No. 24-cv-0653-GPG-
STV, 2025 WL 1014791, at *1 (D. Colo. Apr. 2, 2025) (explaining that Federal Rule of
Civil Procedure 59(e) applies to a motion for reconsideration filed within 28 days of final
judgment). Plaintiff’s current Motion [#71] was filed more than 28 days after the Court’s
Order granting Defendant’s Motion to Dismiss was entered on March 23, 2025. Order and
Judgment [#63, #64]. Therefore, the Court will consider Plaintiff’s Motion under Federal
Rule of Civil Procedure 60(b).
Rule 60(b) allows a court to grant relief from an order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud 	(whether 	previously 	called 	intrinsic 	or 	extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
“Rule 	60(b) 	relief 	‘is 	extraordinary 	and 	may 	only 	be 	granted 	in 	exceptional
circumstances.’” Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005)
(quoting Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000)). “Courts
rarely grant Rule 60(b) motions, deferring instead to the need for finality and the appeals
process.” Vreeland v. Tiona, No. 17-cv-01580-PAB-SKC, 2020 WL 2832370, at *2 (D.
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Colo. May 29, 2020). Further, Rule 60(b) is not a proper avenue to “reargue an issue
previously addressed by the court when the reargument merely advances new arguments
or supporting facts which were available for presentation at the time of the original
argument.” Yarbary v. Martin, 643 F. App’x 813, 817 (10th Cir. 2016) (quoting F.D.I.C. v.
United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998)). A motion under Rule 60(b)
is left to the discretion of the trial court. Cf. Compañia de Inversiones Mercantiles S.A. v.
Grupo Cementos de Chihuahua S.A.B. de C.V., 58 F.4th 429, 464 (10th Cir. 2023)
(explaining that appellate court reviews rulings on Rule 60(b) motions “only for abuse of
discretion and may not substitute [its] own judgment for that of the trial court.” (citation
and internal quotation marks omitted)).
III. 	Analysis
A. 	Newly Discovered Evidence
In requesting the Court reconsider its previous ruling, Plaintiff relies on what he
characterizes as new evidence, implicating Rule(60)(b)(2). Motion [#71] at 2-5. In
previously dismissing Plaintiff’s breach of contract claim, the Court determined Plaintiff
had failed to sufficiently allege that a contract existed between the parties. Order [#63] at
7-8. In his current Motion, Plaintiff contends that he recently found the “ink signed
contract,” which he describes as “pivotal in his argument that a contract did indeed exist
between himself and the Defendant.” Motion [#71] at 2-4. Because the Court determines
the document does not constitute newly discovered evidence for purposes of a motion for
reconsideration, it is unnecessary to determine whether it would affect the Court’s prior
rulings.
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For evidence to qualify as newly discovered, “the moving party must show: ‘(1) the
evidence was newly discovered since the [underlying court order]; (2) the moving party
was diligent in discovering the new evidence; (3) the newly discovered evidence [is] not
merely cumulative or impeaching; (4) the newly discovered evidence is material; and (5)
. . . the newly discovered evidence would probably produce a different result.’” Dronsejko
v. Thornton, 632 F.3d 658, 670 (10th Cir. 2011) (quoting Zurich N. Am., 426 F.3d at 1290).
“Actual diligence is one of the requirements for relief under Rule 60(b)(2).” Id. at 672
(citing Zurich N. Am., 426 F.3d at 1290; Miller v. Baker Implement Co., 439 F.3d 407, 414
(8th Cir. 2006) (noting that the movant must show “that [he] exercised diligence to obtain
the evidence before entry of the order”); United States v. Fulcher, 250 F.3d 244, 249 (4th
Cir. 2001) (noting that the movant must allege facts “from which the court may infer
diligence on the part of the movant”)).
“[C]ourts in the Tenth Circuit focus on whether the ‘new evidence’ was previously
accessible, disclosable, or available.” Petrie v. GoSmith, Inc., No. 18-cv-01528-CMA-
MEH, 2020 WL 376502, at *3 (D. Colo. Jan. 23, 2020) (citing Frye v. Okla. Corp. Comm’n,
516 F.3d 1217, 1223–24 (10th Cir. 2008) (finding no abuse of discretion where district
court denied motion for reconsideration because purportedly “new evidence” was a letter
in the movant’s possession “from the commencement of the lawsuit and [was] not newly
discovered evidence”); Comm. for First Amend. v. Campbell, 962 F.2d 1517, 1523-24
(10th Cir. 1992) (finding no abuse of discretion where district court denied motion for
reconsideration because the plaintiff failed to demonstrate that the proffered evidence
“was newly discovered or unavailable” despite prior exercise of reasonable diligence))
(other citations omitted).
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Plaintiff asserts that he “did not have access to the ink signed contract between
himself and the Defendant until after the court dismissed the original complaint.” Motion
[#71] at 4. He “had forgotten about having ha[d] access to said contract” and found it on
his computer by performing an “exhaustive review of emails from an old account from
over 3 years ago.” Id. at 3. In his Addendum, Plaintiff states that although he previously
stated he found the contract “after vigorous email searches[,] [i]n actuality, . . . . [he]
noticed that he had found the contract via a search on his computer that led him to a
folder copied from a previous computer.” Addendum [#72] ¶ 28. He explains that he
thought the materials from the previous computer were lost but he happened to find a
backup drive containing the contract amongst his storage materials. Id.
Plaintiff’s explanation 	of 	finding 	this contract 	establishes that 	it 	was in 	his
possession and accessible to him from the beginning of the lawsuit. In Petrie, the plaintiff
filed a second motion for reconsideration, relying on evidence a forensic expert found on
his computer after the court’s denial of his first motion for reconsideration. Petrie, 2020
WL 376502, at *4. The Court denied the second motion, explaining:
That 	the 	forensic 	examination 	revealed 	alleged 	facts 	that 	were 	not
previously asserted does not mean that the information was not previously
available. Although Plaintiff explains why he did not [previously] obtain the
forensic examination . . . , his explanation does not erode the determinative
fact—that his computer was available the whole time. Indeed, Plaintiff fails
to establish that this “new evidence” from his computer was inaccessible,
undisclosable, or unproducible prior to the issuance of the Underlying
Order. To the contrary, it is undisputed that Plaintiff’s computer was within
his possession since before the inception of this case. He chose not to hire
a forensic expert to analyze his computer until it was too late. Whether
reconsideration is warranted should not turn on Plaintiff’s strategic choices
in litigation. Simply put, there is no indication that evidence from Plaintiff’s
computer was previously unavailable.
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Id. (citing Gebremedhin v. Am. Fam. Mut. Ins. Co., No. 13-cv-02813-CMA-BNB, 2016 WL
7868815, at *1 (D. Colo. Feb. 5, 2016)).
The same reasoning applies to the present case. Plaintiff does not indicate that
prior to finding the at-issue contract, the computer or hard drive were not available to him.
Instead, he simply forgot that he had access to the contract and then later searched for it
on his computer or backup hard drive. Motion [#71] at 3; Addendum [#72] ¶ 28. Forgetting
that something is in one’s possession does not equate to it being unavailable or
inaccessible. Thus, “Plaintiff fails to establish that this ‘new evidence’ from his computer
was 	inaccessible, 	undisclosable, 	or 	unproducible 	prior 	to 	the” 	Court 	granting 	the
Defendant’s Motion to Dismiss and denying Plaintiff’s first Motion to Reconsider. Petrie,
2020 WL 376502, at *4. The contract was on Plaintiff’s computer or backup drive and was
accessible to him throughout his lawsuit. Motion [#71] at 3; Addendum [#72] ¶ 28. Thus,
the contract does not constitute newly discovered evidence and does not provide a basis
for a motion to reconsider the Court’s previous ruling.
B. 	Addendum
Although by no means a model of clarity, in his Addendum, Plaintiff asserts
Defendant erred in revoking his license without considering that his previous employer
failed to train him on HIPAA laws. Addendum [#72] ¶¶ 25-27. He also argues that
Defendant “exceeded its jurisdiction and abused its discretion” by “act[ing] as a quasi-
legislative board versus a quasi-judicial board.” Id. ¶ 23.
Plaintiff previously asserted similar allegations and arguments in support of his
negligence claims, and the Court rejected the same. See Am. Comp. [#48] at 16-18
¶¶ 37, 39, 41, 42, 44, 45 (asserting Defendant had an independent and statutory duty to
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investigate whether Plaintiff’s employer properly trained him on HIPAA laws and that
Defendant failed to fulfill its “function and responsibility to meeting legislative intent in
conducting its quasi-judicial role.”); Order [#63] at 9-14 (dismissing Plaintiff’s negligence
claims for failure to state a claim upon which relief could be granted). Motions for
reconsideration are not a means to reassert arguments previously raised and rejected.
See Brett Andrew: House of Nelson v. Walzl, No. 20-cv-01012-LTB-GPG, 2020 WL
7064559, at *2 (D. Colo. Dec. 1, 2020) (denying motion for reconsideration under Rule
60 because it was based upon arguments the court previously rejected), aff’d, 834 F.
App’x 472 (10th Cir. 2021).
IV. 	Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#71] is DENIED.
Dated: November 14, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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