Benson v. Family Tree Corporation, Inc. et al

Filing 227

ORDER in Response to 217 Letter to District Judge. IT IS HEREBY ORDERED: 1. The Court DENIES AS MOOT Plaintiffs Letter Request to File a Motion for Reconsideration 217 . 2. Defendants shall file their opposition to Plaintiffs' ; Rule 59(e) motion within 30 days of the date of the filing of this Order. 3. Plaintiffs shall file their reply in support of their Rule 59(e) motion within 50 days of the date of the filing of this Order. (Written Opinion) Signed by Judge Michael J. Davis on 9/30/2020.(GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

JOHN BENSON and
BRIAN BENSON,
Plaintiffs,

v.

ORDER
Civil File No. 17-3839 (MJD/DTS)

ANN KEMSKE and
JON KEMSKE,
Defendants.
John Benson, pro se.
Brian Benson, pro se.
David C. McLaughlin and Jason G. Lina, Fluegel, Anderson, McLaughlin &
Brutlag, Chtd., Counsel for Defendants Ann Kemske and Jon Kemske.
I.

INTRODUCTION
The above-entitled matter comes before the Court upon Plaintiffs’ Letter

Request to File a Motion for Reconsideration. [Docket No. 217]
II.

BACKGROUND
On August 18, 2020, the Court granted Defendants’ motion to dismiss,

dismissed this case with prejudice, and entered judgment. [Docket Nos. 214, 215]
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On September 3, Plaintiffs filed a letter pursuant to Local Rule 7.1(j), requesting
permission “to file a motion to reconsider pursuant to a Rule 59(e) [] motion.”
[Docket No. 217] Defendants filed a letter in opposition [Docket No. 218], and
Plaintiffs filed a reply letter [Docket No. 219]. On September 15, before the Court
addressed the letter request, Plaintiffs filed their Motion for Rule 59(e) to Alter or
Amend Order and Judgment of 8/18/2020. [Docket No. 220] On September 16,
Plaintiffs filed a notice of appeal to the Eighth Circuit Court of Appeals
appealing the August 18 judgment. [Docket No. 224]
III.

DISCUSSION
The Local Rules provide that a party may only file a motion for

reconsideration “with the court’s prior permission” and after showing
“compelling circumstances.” L.R. 7.1(j). However, the Eighth Circuit has
indicated that it
doubt[s] that the local rule was intended to apply to post-judgment
motions filed within the time limit prescribed in Fed. R. Civ. P. 59(e).
This rule expressly authorizes the filing of motions to alter or amend
a judgment. Litigants have a right, granted by the Federal Rules of
Civil Procedure, to file such motions.
DuBose v. Kelly, 187 F.3d 999, 1002 n.1 (8th Cir. 1999). Therefore, the Court
denies Plaintiffs’ letter request as moot because Plaintiffs have a right to file their
Rule 59(e) motion without Court permission and have, in fact, already done so.
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Although Plaintiffs filed a notice of appeal after filing their Rule 59(e)
motion, the Court retains jurisdiction to address Plaintiffs’ Rule 59(e) motion:
Rule 4(a)(4) of the Federal Rules of Appellate Procedure, as
amended, provides that when a notice of appeal is filed after a
judgment but before a district court has had an opportunity to rule
on a pending tolling motion, the notice of appeal lies dormant until
the trial court disposes of the pending motion. Upon such
disposition, the notice becomes effective. Because [Plaintiffs’] Rule
59(e) motion to reconsider is such a tolling motion, [Plaintiffs’]
notice of appeal did not divest the trial court of jurisdiction to rule
on the motion.
MIF Realty L.P. v. Rochester Assocs., 92 F.3d 752, 755 (8th Cir. 1996) (citations
omitted).
Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:
1. The Court DENIES AS MOOT Plaintiffs’ Letter Request to File a
Motion for Reconsideration [Docket No. 217].
2. Defendants shall file their opposition to Plaintiffs’ Rule 59(e)
motion within 30 days of the date of the filing of this Order.
3. Plaintiffs shall file their reply in support of their Rule 59(e)
motion within 50 days of the date of the filing of this Order.

Dated: September 30, 2020

s/ Michael J. Davis
Michael J. Davis
United States District Court
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