Parker et al v. Thurston County, Nebraska et al

Filing 30

MEMORANDUM OPINION that the Court will deny plaintiffs' motion for a new trial. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MLF, )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MARK PARKER and GLORIA J.
PAYER, and those similarly
situated,

)
)

)
)
)
v.
)
)
THURSTON COUNTY, NEBRASKA,
)
CAROLINE FRENCHMAN, et al.,
)
)
Defendants.
)
______________________________)
Plaintiffs,

8:15CV159

MEMORANDUM OPINION

This matter is before the Court on plaintiffs’ Mark
Parker, Gloria J. Payer, “[a]nd Those Similarly Situated”
(“plaintiffs”) Motion for New Trial (Filing No. 23).

Plaintiffs

filed their “Motion for New Trial” on August 24, 2015.

See id.

Defendants filed their responses on September 1, 2015 (Filing No.
25) and September 3, 2015 (Filings Nos. 26 and 27).

As of the

date of this Order, plaintiffs have failed to reply.1
Plaintiffs fail to specify the rule upon which they
rely in bringing the present motion.

See Filing Nos. 23 and 24.

Plaintiffs title their present motion as a “Motion for New Trial”

1

The local rules provide that any reply be filed “within 7
days after the opposing party files and serves the opposing
brief.” NECivR 7.1(c). In accordance with the local rules,
plaintiff has failed to timely reply. Instead plaintiffs filed a
Notice of Filing of Exhibits (Filing No. 28) and Request for
Judicial Notice (Filing No. 29).

and allude to Federal Rule of Civil Procedure 59.

See id.

However plaintiffs’ brief is unclear, especially given the prior
disposition of the case.

“[W]hen a party fails to specify the

rule under which its motion is made, courts are ‘put in the
difficult position of deciding’ how best to characterize the
motion.”

White v. Smith, 808 F. Supp. 2d 1174, 1234 (D. Neb.

2011) (quoting Broadway v. Norris, 193 F.3d 987, 989 (8th Cir.
1999)).

It seems unlikely to the Court that plaintiffs’ motion

ought to be construed under Federal Rule of Civil Procedure 59.
Rule 59 applies after either a bench or jury trial has taken
place.

See Fed. R. Civ. P. 59(a) (discussing relief after jury

and nonjury trials).

Since the Court dismissed plaintiffs’

complaint long before a trial occurred, it is difficult to
determine how a new trial could be requested, let alone granted,
when a first trial never took place.

The Court will therefore

construe plaintiffs’ motion as one arising under Federal Rule of
Civil Procedure 60(b).2

2

The Eighth Circuit has held that the analysis under Rules
59(e) and 60(b)(2) is identical. Therefore, although the Court
will interpret plaintiffs’ motion as one arising under Rule 60,
this conclusion would not make any difference in the Court’s
ultimate conclusion or the case’s disposition. See U.S. v.
Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 n.3 (8th
Cir. 2006).
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Federal Rule of Civil Procedure 60(b) provides grounds
upon which a court “may relieve a party or its legal
representative from a final judgment, order, or proceeding ....”
Fed. R. Civ. P. 60(b).

Subsections one and two of Rule 60 allow

relief for “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).”

Id.

The Court finds that

plaintiffs fail to satisfactorily provide any of the reasons for
which the Federal Rules provide relief.

Therefore, the Court

will deny plaintiffs’ motion for a new trial.
Wood, 238 F.3d 992, 998 (8th Cir. 2001).

See Arnold v.

A separate order will

be entered in accordance with this memorandum opinion.
DATED this 22nd day of September, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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