Kruskal v. Martinez et al

Filing 13

MEMORANDUM OPINION AND ORDER denying 11 MOTION for Reconsideration by District Judge James O. Browning. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
KERRY KRUSKAL,
Plaintiff,
vs.

No. CIV 16-1075 JB/SCY

JUAN MARTINEZ and DIANA
MARTINEZ,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reconsi[]der Request to
Reopen Memorandum Op[]inion and Order Denying Motion to Reopen Case, filed January 11,
2018 (Doc. 11)(“Motion to Reconsider”). Plaintiff Kerry Kruskal appears pro se. For the
reasons set out below, the Court will deny Kruskal’s Motion to Reconsider.
PROCEDURAL BACKGROUND
On September 29, 2016, Kruskal filed suit in federal court requesting relief from a state
court decision. See Notice of Appeal -- Complaint to Send NM Supreme Court Decision Back to
State at 1-3, filed September 29, 2016 (Doc. 1)(“Complaint”). In 2015, the Eighth Judicial
District Court, County of Taos, State of New Mexico, ruled against Kruskal on a contract dispute,
but the state court clerk did not send a copy of the ruling to the parties. See Complaint at 1.
Kruskal appealed, but “[t]he Appellate Court refused to look into the issues raised in the appeal,
stating that Kruskal had missed the 30 day deadline.” Complaint at 2. “The Supreme Court
upheld the Appellate decision.” Complaint at 2. Consequently, Kruskal requested “that this
Federal Court reverse the opinion of the Supreme [C]ourt, and send the appeal back down to be
reviewed on the merits.” Complaint at 2. Kruskal also filed a CM/ECF Pro Se Notification

Form showing that he elected to receive notification via email. See CM/ECF Pro Se Notification
Form at 1, filed September 29, 2016 (Doc. 3)(“Pro Se Form”).
In November, 2016, the Court dismissed this case without prejudice for lack of
subject-matter jurisdiction stating:
Kruskal, who lost in state court by virtue of a decision which the Supreme Court of
the State of New Mexico entered before the commencement of this case, asks this
Court to review the correctness of the Supreme Court of the State of New Mexico’s
decision. See Complaint at 2. The Court does not have jurisdiction to review the
Supreme Court of the State of New Mexico’s decision. See Valdez v. Metro.
Prop. & Cas. Ins. Co., 867 F. Supp. 2d [1143], 1167–68 [(D.N.M. 2012)(Browning,
J.)](stating that the Rooker-Feldman[1] doctrine requires: “(i) a state-court loser; (ii)
who is asking a federal district court; (iii) to review the correctness of a judgment
rendered by a state court; and (iv) which judgment was rendered before the
commencement of the federal proceeding”). Kruskal does not seek any other
relief, and does not allege any facts showing that this Court has subject-matter
jurisdiction. See United States ex rel. General Rock & Sand Corp. v. Chuska Dev.
Corp., 55 F.3d [1491],1495 [10th Cir. 1995)] (stating that the party seeking the
exercise of jurisdiction bears the burden of establishing the validity of that
jurisdiction and “must allege in his pleading the facts essential to show
jurisdiction”).
Memorandum Opinion and Order of Dismissal at 7-8, 2016 WL 7246108, at *4, filed November
30, 2016 (Doc. 7)(“Dismissal Order”). The Court entered Final Judgment on November 30,
2016. See Final Judgment at 1, filed November 30, 2016 (Doc. 8)(“Final Judgment”). On
November 30, 2016, the Court electronically emailed Notices of Electronic Filing of the Dismissal
Order and the Final Judgment to the email address that Kruskal provided in his CM/ECF Pro Se
Notification Form. See Pro Se Form at 1; Memorandum Opinion and Order Denying Motion to

1

The Rooker-Feldman doctrine derives from two Supreme Court of the United States of
America cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983). The United States Court of Appeals for the Tenth
Circuit has held that the “Rooker-Feldman doctrine prohibits federal suits that amount to appeals
of state-court judgments.” Bolden v. City of Topeka, 441 F.3d 1129, 1142-43 (10th Cir. 2006).
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Reopen Case at 3, 2018 WL 279751, at *2, filed January 3, 2018 (Doc. 10)(“MOO”). Kruskal did
not file a notice of appeal.
On May 5, 2017, Kruskal asked the Court to reopen this “case such that Kruskal can
appeal.” Request to Reopen Case Such That Kruskal Can Appeal the Final Judgement [sic] The
Honorable James O. Browning 11/30/2016 at 2, filed May 5, 2017 (Doc. 9)(“Motion to Reopen”).
Kruskal appeared to make his request to reopen the case pursuant to rule 4 of the Federal Rules of
Appellate Procedure; Kruskal stated: “The record shows that Kruskal was sent two emails on
11/30/2016. They did not arrive.” Motion to Reopen ¶ 3, at 1.
The Court denied Kruskal’s Motion to Reopen, “[b]ecause the first prerequisite for
reopening the time to appeal pursuant to rule 4(a)(6) of the Federal Rules of Appellate Procedure
has not been met.” MOO at 4, 2018 WL 279751, at *2. To reopen the time to appeal, the Court
must find:
(A)

. . . that the moving party did not receive notice under Federal Rule of Civil
Procedure 77(d) of the entry of the judgment or order sought to be appealed
within 21 days after entry;

(B)

the motion is filed within 180 days after the judgment or order is entered or
within 14 days after the moving party receives notice under Federal Rule of
Civil Procedure 77(d) of the entry, whichever is earlier; and,

(C)

. . . that no party would be prejudiced.

Fed. R. App. P. 4(a)(6). The Court stated:
The Court’s investigation of the record in this case does not support Kruskal’s
assertion that he did not receive the Dismissal Order and the Final Judgment. The
Notices of Electronic Filing of the Dismissal Order and the Final Judgment were
electronically mailed to the email address that Kruskal provided. Furthermore, a
systems engineer with the Court reviewed the Court’s Case E-Mail Notification
Tracking System archives, which show that the destination server successfully
received the emails on November 30, 2016 emails to Kruskal. Kruskal offers no

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explanation for why he did not receive the emails. The Court concludes that
Kruskal received timely notice of the Court’s Dismissal Order and Final Judgment.
MOO at 3-4, 2018 WL 279751, at *2.
In his Motion to Reconsider, which he filed on January 11, 2018, Kruskal states: “Just a
couple of days ago, Kruskal went back into his own archived mail to find that the letters[2] did in
fact arrive on 11/30/201[6].”3 Motion to Reconsider at 11. Kruskal also states that he “just now
opened the emails, for the very first time Kruskal sees” the notice of the Court’s Order dismissing
the case. Motion to Reconsider at 3. Kruskal explains that a “server problem” may have caused
the emails to arrive late. Motion to Reconsider at 3.
LAW REGARDING MOTIONS TO RECONSIDER
Except where the Federal Rules of Civil Procedure specify, motions to reconsider fall into
three categories. First, there are motions to reconsider “filed within [twenty-eight] days of the
entry of judgment” and those are “treated as a motion to alter or amend the judgment under rule
59(e).” Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. 453, 462 (D.N.M. 2009)(Browning, J.).
Second, there are motion to reconsider “filed more than [twenty-eight] days after judgment,”
which are “considered a motion for relief from judgment under rule 60(b).” Pedroza v. Lomas
Auto Mall, Inc., 258 F.R.D. at 462. Finally, there are motions to reconsider “any order that is not
final,” which is treated as a “general motion directed at the Court’s inherent power to reopen any
interlocutory matter in its discretion.” Pedroza v. Lomas Auto Mall, Inc., 258 F.R.D. at 462.
2

The word “letters” refers to the Notices of Electronic Filing of the Dismissal Order and the
Final Judgment that the Court electronically mailed to the email address which Kruskal provided.
3

Kruskal notes the date as November 30, 2015, but the order was issued November 30,
2016. The Court concludes that the year’s date in Kruskal’s Motion to Reconsider is a
typographical error.
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See Price v. Philpot, 420 F.3d 1158, 1167 & n.9 (10th Cir. 2005); Computerized Thermal Imaging,
Inc. v. Bloomberg. L.P., 312 F.3d 1292, 1296 (10th Cir. 2002).

1.

Motions for Reconsideration Under Rules 59(e) and 60(b).

Courts may treat motions for reconsideration as a rule 59(e) motion when the movant files
within twenty-eight days of a court’s entry of judgment. See Price v. Philpot, 420 F.3d at 1167
n.9. If the movant files outside that time period, courts should treat the motion as seeking relief
from judgment under rule 60(b). See Price v. Philpot, 420 F.3d at 1167 n.9. “[A] motion for
reconsideration of the district court’s judgment, filed within [rule 59’s filing deadline], postpones
the notice of appeal’s effect until the motion is resolved.” Jones v. United States, 355 F. App’x
117, 121 (10th Cir. 2009)(unpublished). The time limit in rule 59(e) is now twenty-eight days
from the entry of a judgment.

See Fed. R. Civ. P. 59(e).

Whether a motion for reconsideration should be considered a motion under rule 59 or rule
60 is not only a question of timing, but also “depends on the reasons expressed by the movant.”
Commonwealth Prop. Advocates, LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194,
1200 (10th Cir. 2011).

Where the motion “involves ‘reconsideration of matters properly

encompassed in a decision on the merits,’” a court considers the motion under rule 59(e). Phelps
v. Hamilton, 122 F.3d 1309, 1323-24 (10th Cir. 1997)(quoting Martinez v. Sullivan, 874 F.2d 751,
753 (10th Cir. 1989)). In other words, if the reconsideration motion seeks to alter the district
court’s substantive ruling, then it should be considered a rule 59 motion and be subject to rule 59’s
constraints.

See Phelps v. Hamilton, 122 F.3d at 1324. In contrast, under rule 60,

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[o]n motion and just terms, the court may relieve a party or its legal representatives
from a final judgment, order, or proceeding 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.

Fed. R. Civ. P. 60(b). Neither a rule 59 nor a rule 60 motion for reconsideration
are appropriate vehicles to reargue an issue previously addressed by the court when
the motion merely advances new arguments, or supporting facts which were
available at the time of the original motion. . . . Grounds warranting a motion to
reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent
manifest injustice.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “[A] motion for
reconsideration is appropriate where the court has misapprehended the facts, a party’s position, or
the controlling law.” Servants of the Paraclete v. Does, 204 F.3d at 1012. A district court has
considerable discretion in ruling on a motion to reconsider. See Phelps v. Hamilton, 122 F.3d at
1324.
Rule 60 authorizes a district court to, “[o]n motion and just terms[,] . . . relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons,”
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including “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). A court cannot enlarge
the time for filing a rule 59(e) motion. See Brock v. Citizens Bank of Clovis, 841 F.2d 344, 347
(10th Cir. 1988)(holding that district courts lack jurisdiction over untimely rule 59(e) motions);
Plant Oil Powered Diesel Fuel Sys., Inc. v. ExxonMobil Corp., No. 11-0103, 2012 WL 869000, at
*2 (D.N.M. Mar. 8, 2012)(Browning, J.)(“The Court may not extend the time period for timely
filing motions under Rule 59(e) . . . .”). “A motion under rule 59 that is filed more than 28 days
after entry of judgment may be treated as a Rule 60(b) motion for relief from judgment.”

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James Wm. Moore et al., Moore’s Federal Practice § 59.11[4][b], at 59-32 (3d ed. 2012)(citations
omitted). Nevertheless, a court will not generally treat an untimely rule 59(e) motion as a rule
60(b) motion when the party is seeking “‘reconsideration of matters properly encompassed in a
decision on the merits’ contemplated by Rule 59(e).” Jennings v. Rivers, 394 F.3d 850, 854 (10th
Cir. 2005).
Under some circumstances, parties can rely on rule 60(b)(1) for a mistake by their attorney
or when their attorney acted without their authority. See Yapp v. Excel Corp., 186 F.3d 1222,
1231 (10th Cir. 1999)(“Rule 60(b)(1) motions premised upon mistake are intended to provide
relief to a party . . . when the party has made an excusable litigation mistake or an attorney has
acted without authority . . . .”). Mistake in this context entails either acting without the client’s
consent or making a litigation mistake, such as failing to file or to comply with deadlines. See
Yapp v. Excel Corp., 186 F.3d at 1231. If the alleged incident entails a mistake, then it must be
excusable, meaning that the party was not at fault.

See Pioneer Inv. Servs. v. Brunswick Assocs.

LP, 507 U.S. 380, 394 (1993); Cashner v. Freedom Stores, Inc., 98 F.3d 572, 577 (10th Cir.
1996)(“If the mistake alleged is a party’s litigation mistake, we have declined to grant relief under

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Rule 60(b)(1) when the mistake was the result of a deliberate and counseled decision by the
party.”); Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990)(holding that
attorney carelessness is not a basis for relief under rule 60(b)(1)).
Courts will not grant relief when the mistake of which the movant complains is the result of
an attorney’s deliberate litigation tactics. See Cashner v. Freedom Stores, Inc., 98 F.3d at 577.
This rule exists because a party
voluntarily chose [the] attorney as his representative in the action, and he cannot
now avoid the consequences of the acts or omissions of this freely selected agent.
Any other notion would be wholly inconsistent with our system of representative
litigation, in which each party is deemed bound by the acts of his lawyer agent and
is considered to have notice of all facts, notice of which can be charged upon the
attorney.
Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507 U.S. at 397 (quoting Link v. Wabash R.R. Co.,
370 U.S. 626, 633-34 (1962))(internal quotation marks omitted). The Tenth Circuit has held that
there is nothing “novel” about “the harshness of penalizing [a client] for his attorney’s conduct,”
and has noted that those “who act through agents are customarily bound,” even though, when “an
attorney is poorly prepared to cross-examine an expert witness, the client suffers the
consequences.” Gripe v. City of Enid, Okla., 312 F.3d 1184, 1189 (10th Cir. 2002).
Rule 60(b)(6) is a “grand reservoir of equitable power to do justice in a particular case.”
Van Skiver v. United States, 952 F.2d 1241, 1244 (10th Cir. 1991)(internal quotation marks
omitted). “If the reasons offered for relief from judgment could be considered under one of the
more specific clauses of Rule 60(b)(1)-(5), those reasons will not justify relief under Rule
60(b)(6).” Moore, supra § 60.48[2], at 60-182. Accord Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 n.11 (1988)(“This logic, of course, extends beyond clause (1) and

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suggests that clause (6) and clauses (1) through (5) are mutually exclusive.”). “The Rule does not
particularize the factors that justify relief, but we have previously noted that it provides courts with
authority ‘adequate to enable them to vacate judgments whenever such action is appropriate to
accomplish justice,’ while also cautioning that it should only be applied in ‘extraordinary
circumstances.’” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. at 863.
Generally, the situation must be one beyond the control of the party requesting relief under
rule 60(b)(6) to warrant relief. See Ackermann v. United States, 340 U.S. 193, 202 (1950)(“The
comparison [of prior precedent] strikingly points up the difference between no choice and choice;
imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for
negligence and inexcusable negligence. Subsection 6 of Rule 60(b) has no application to the
situation of petitioner.”). Legal error that provides a basis for relief under rule 60(b)(6) must be
extraordinary, as the Tenth Circuit discussed in Van Skiver v. United States:
The kind of legal error that provides the extraordinary circumstances justifying
relief under Rule 60(b)(6) is illustrated by Pierce [v. Cook & Co., 518 F.2d 720,
722 (10th Cir. 1975)(en banc)]. In that case, this court granted relief under
60(b)(6) when there had been a post-judgment change in the law “arising out of the
same accident as that in which the plaintiffs . . . were injured.” Pierce v. Cook &
Co., 518 F.2d at 723. However, when the post-judgment change in the law did not
arise in a related case, we have held that “[a] change in the law or in the judicial
view of an established rule of law” does not justify relief under Rule 60(b)(6).
Collins v. City of Wichita, 254 F.2d 837, 839 (10th Cir. 1958).
Van Skiver v. United States, 952 F.2d at 1244-45.
2.

Motions to Reconsider Interlocutory Orders.

Considerable confusion exists among the bar regarding the proper standard for a district
court to apply when ruling on a motion to reconsider one of its prior “interlocutory” or “interim”
orders, i.e., an order that a district court issues while the case is ongoing, as distinguished from a
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final judgment. This confusion originates from the fact that the Federal Rules of Civil Procedure
do not mention motions to reconsider, let alone set forth a specific procedure for filing them or a
standard for analyzing them. A loose conflation in terminology in Servants of the Paraclete v.
Does, which refers to rule 59(e) motions -- “motion[s] to alter or amend a judgment” -- as “motions
to reconsider,”4 compounded that baseline confusion. Fed. R. Civ. P. 59(e) (emphasis added);
Servants of the Paraclete v. Does, 204 F.3d at 1005.
Final judgments are different from interlocutory orders. See Fed. R. Civ. P.
54(a)(“‘Judgment’ as used in these rules includes a decree and any order from which an appeal
lies.”)(emphasis added). In addition to ripening the case for appeal, see 28 U.S.C. § 1291 (“The
courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts
. . . .”), the entry of final judgment narrows the district court’s formerly plenary jurisdiction over
4

The Honorable Paul J. Kelly, Jr., now-Senior United States Circuit Judge for the Tenth
Circuit, who authored Servants of the Paraclete v. Does, refers to rule 59(e) motions as “motions to
reconsider” several times throughout the opinion. E.g., 204 F.3d at 1005. He uses the term “motion
to reconsider” as an umbrella term that can encompass three distinct motions: (i) motions to
reconsider an interlocutory order, which no set standard governs, save that the district court must
decide them “before the entry of . . . judgment,” Fed. R. Civ. P. 54(b); (ii) motions to reconsider
a judgment made within twenty-eight days of the entry of judgment, which the Servants of the
Paraclete v. Does standard governs; and (iii) motions to reconsider a judgment made more than
twenty-eight days after the entry of judgment, which rule 60(b) governs. There is arguably a
fourth standard for motions to reconsider filed more than a year after the entry of judgment, as
three of the rule 60(b) grounds for relief expire at that point.
Much confusion could be avoided by using the term “motion to reconsider” exclusively to
refer to the first category, “motion to amend or alter the judgment” exclusively to refer to the
second category, and “motion for relief from judgment” exclusively to refer to the third category
(and arguable fourth category). These are the terms that the Federal Rules of Civil Procedure -- and
other Circuits -- use to describe (ii) and (iii). The Court agrees with Judge Kelly -- and all he likely
meant by using motion to reconsider as an umbrella term is -- that, if a party submits a motion
captioned as a “motion to reconsider” after an entry of final judgment, the court should evaluate it
under rule 59(e) or 60(b), as appropriate, rather than rejecting it as untimely or inappropriate.

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the case in three ways. First, for the first twenty-eight days after the entry of judgment, when the
court can entertain motions under rules 50(b), 52(b), 59, and 60, the district court’s jurisdiction
trumps that of the Court of Appeals. See Fed. R. App. P. 4(a)(4)(B). Even if a party files a
notice of appeal, the Court of Appeals will wait until after the district court has ruled on the
post-judgment motion to touch the case.

See Fed. R. App. P. 4(a)(4)(B).

Second, after

twenty-eight days, when the court may consider motions under rule 60, if a party has filed a notice
of appeal, the Court of Appeals’ jurisdiction trumps the district court’s, and the district court needs
the Court of Appeals’ permission even to grant a rule 60 motion. Third, after twenty-eight days, if
no party has filed a notice of appeal, district courts may consider motions under rule 60.
Final judgments implicate two important concerns militating against giving district courts
free reign to reconsider their judgments. First, when a case is not appealed, there is an interest in
finality.

The parties and the lawyers expect to go home, quit obsessing about the dispute, and put

the case behind them, and the final judgment -- especially once the twenty-eight day window of
robust district court review and the thirty-day window of appeal have both closed -- is the
disposition upon which they are entitled to rely. Second, when a case is appealed, there is the
need for a clean jurisdictional handoff from the district court to the Court of Appeals. “[A]
federal district court and a federal court of appeals should not attempt to assert jurisdiction over a
case simultaneously,” as doing so produces a “danger [that] a district court and a court of appeals
w[ill] be simultaneously analyzing the same judgment.” Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58-59 (1982).
The Court of Appeals needs a fixed record on which to base its decisions -- especially
given the collaborative nature of appellate decision making -- and working with a fixed record

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requires getting some elbow room from the district court’s continued interference with the case.
The “touchstone document” for this jurisdictional handoff is the notice of appeal, and not the final
judgment, see Griggs v. Provident Consumer Discount Co., 459 U.S. at 58 (“The filing of a notice
of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals
and divests the district court of its control over those aspects of the case involved in the appeal.”
(citations omitted)); Garcia v. Burlington N. R.R. Co., 818 F.2d 713, 721 (10th Cir. 1987)(“Filing
a timely notice of appeal pursuant to Fed. R. App. P. 3 transfers the matter from the district court to
the court of appeals. The district court is thus divested of jurisdiction. Any subsequent action by
it is null and void.” (citations omitted)); Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1170
(5th Cir. 1978)(“[I]t is the filing of the appeal, not the entering of a final judgment, that divests the
district court of jurisdiction.” (citations omitted)), but, because the final judgment starts the
parties’ thirty-day clock for filing a timely notice of appeal, the Federal Rules and the Tenth
Circuit have chosen to curtail the district court’s jurisdiction over the case in the roughly
month-long period of potentially overlapping trial- and appellate-court jurisdiction that
immediately follows the entry of final judgment, see Servants of the Paraclete v. Does, 204 F.3d at
1009 (noting that post-final judgment motions at the district court level are “not intended to be a
substitute for direct appeal”).
Basically, rather than suddenly divesting the district court of all jurisdiction over the case
-- potentially resulting in the district court being unable to rectify easily fixable problems with the
final judgment before the case goes to the Tenth Circuit, or even requiring appeal of a case that
might otherwise not need to be appealed -- the Federal Rules set forth a jurisdiction phased
de-escalation process, wherein the district court goes from pre-final judgment plenary
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jurisdiction, to limited review for the first twenty-eight days post-final judgment, and, finally, to
solely rule 60 review after twenty-eight days. In defining the “limited review” that rule 59(e)
allows a district court to conduct in the 28-day flux period, the Tenth Circuit, in Servants of the
Paraclete v. Does, incorporated traditional law-of-the-case grounds -- the same grounds that
inform whether a court should depart from an appellate court’s prior decision in the same case -into rule 59(e). See United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir. 1998)(departing
from the law-of-the-case doctrine in three exceptionally narrow circumstances: “(1) when the
evidence in a subsequent trial is substantially different; (2) when controlling authority has
subsequently made a contrary decision of the law applicable to such issues; or (3) when the
decision was clearly erroneous and would work a manifest injustice”)(citation omitted); Servants
of the Paraclete v. Does, 204 F.3d at 1012 (incorporating those grounds into rule 59(e)).
Neither of these concerns -- finality nor jurisdictional overlap -- is implicated when a
district court reconsiders one of its own interlocutory orders.

The Federal Rules do not

specifically mention motions to reconsider interlocutory orders, but rule 54(b) makes the
following open-ended proclamation about their mutability:
When an action presents more than one claim for relief -- whether as a claim,
counterclaim, crossclaim, or third-party claim -- or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more, but fewer
than all, claims or parties only if the court expressly determines that there is no just
reason for delay. Otherwise, any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.

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Fed. R. Civ. P. 54(b) (emphases added). Rule 54(b) thus (i) provides that a district court can
freely reconsider its prior rulings; and (ii) puts no limit or governing standard on the district court’s
ability to do so, other than that it must do so “before the entry of judgment.” Fed. R. Civ. P. 54(b).
The Tenth Circuit has not cabined district courts’ discretion beyond what rule 54(b)
provides: “[D]istrict courts generally remain free to reconsider their earlier interlocutory orders.”
Been v. O.K. Indus., 495 F.3d at 1225. In the Tenth Circuit, “law of the case doctrine has no
bearing on the revisiting of interlocutory orders, even when a case has been reassigned from one
judge to another.” Rimbert v. Eli Lilly & Co., 647 F.3d 1247, 1252 (10th Cir. 2011)(emphasis
added)(citing Been v. O.K. Indus., Inc., 495 F.3d at 1225). In this context, “the doctrine is merely
a ‘presumption, one whose strength varies with the circumstances.’” Been v. O.K. Indus., Inc.,
495 F.3d at 1225 (quoting Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)).
In short, a district court can use whatever standard it wants to review a motion to reconsider an
interlocutory order. It can review the earlier ruling de novo and essentially reanalyze the earlier
motion from scratch, it can review the ruling de novo but limit its review, it can require parties to
establish one of the law-of-the-case grounds, or it can refuse to entertain motions to reconsider
altogether.
The best approach, in the Court’s eyes, is to analyze motions to reconsider differently
depending on three factors. Cf. Been v. O.K. Indus., Inc., 495 F.3d at 1225 (“[T]he doctrine is
merely a ‘presumption, one whose strength varies with the circumstances.’”)(citation omitted).
First, the Court should restrict its review of a motion to reconsider a prior ruling in proportion to
how thoroughly the earlier ruling addressed the specific findings or conclusions that the motion to
reconsider challenges. How “thoroughly” a point was addressed depends both on the amount of

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time and energy the Court spent on it, and on the amount of time and energy the parties spent on it
-- in briefing and orally arguing the issue, but especially if they developed evidence on the issue.
A movant for reconsideration thus faces a steeper uphill challenge when the prior ruling was on a
criminal suppression motion, class certification motion, or preliminary injunction,5 than when the
prior ruling is, e.g., a short discovery ruling. The Court should also look, not to the prior ruling’s
overall thoroughness, but to the thoroughness with which the Court addressed the exact point or
points that the motion to reconsider challenges. A movant for reconsideration thus faces an easier
task when he or she files a targeted, narrow-in-scope motion asking the Court to reconsider a
small, discrete portion of its prior ruling than when he or she files a broad motion to reconsider that
rehashes the same arguments from the first motion, and essentially asks the Court to grant the
movant a mulligan on its earlier failure to present persuasive argument and evidence.
Second, the Court should consider the case’s overall progress and posture, the motion for
reconsideration’s timeliness relative to the ruling it challenges, and any direct evidence the parties

5

The Court typically makes findings of fact and conclusions of law in ruling on these
motions. At first glance, it appears that the Federal Rules of Civil Procedure set forth additional
standards -- beyond that which applies to other interlocutory orders -- for amending findings of
fact and conclusions of law: “Amended or Additional Findings. On a party’s motion filed no
later than 28 days after the entry of judgment, the court may amend its findings -- or make
additional findings -- and may amend the judgment accordingly. The motion may accompany a
motion for a new trial under Rule 59.” Fed. R. Civ. P. 52(b). This rule appears to limit motions to
reconsider orders with findings of fact and conclusions of law to twenty-eight days. The rule’s use
of the term “entry of judgment,” its reference to rule 59, and its adoption of the same time period
that applies to motions to alter or amend a judgment, all lead the Court to conclude, however, that
rule 52(b) -- and its 28-day time limit -- does not apply to interlocutory orders. The time limit
applies only to findings of fact and conclusions of law supporting a case-ending judgment -- such
as those entered after a bench trial -- and to those giving rise to an interlocutory appeal that, if filed,
divests the district court of its jurisdiction -- such as those entered in support of a preliminary
injunction.
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may produce, and use those factors to assess the degree of reasonable reliance the opposing party
has placed in the Court’s prior ruling. See 18B Charles Alan Wright, Arthur R. Miller, Edward H.
Miller et al., Federal Practice & Procedure § 4478.1, at 695-96 (2d ed. 2002)(“Stability becomes
increasingly important as the proceeding nears final disposition . . . . Reopening should be
permitted, however, only on terms that protect against reliance on the earlier ruling.”). For
example, if a defendant (i) spends tens of thousands of dollars removing legacy computer
hardware from long-term storage; then (ii) obtains a protective order in which the Court decides
that the defendant need not produce the hardware in discovery; then (iii) returns the hardware to
long-term storage, sustaining thousands more in expenses; and (iv) several months pass, then the
plaintiffs should face a higher burden in moving the Court to reconsider its prior ruling that they
faced in fighting the motion for protective order the first time.
Third, the Court should consider the Servants of the Paraclete v. Does grounds. The Court
should be more inclined to grant motions for reconsideration if the movant presents (i) new
controlling authority -- especially if the new authority overrules prior law or sets forth an entirely
new analytical framework; (ii) new evidence -- especially if the movant has a good reason why the
evidence was not presented the first time around; or (iii) a clear indication – one that manifests
itself without the need for in-depth analysis or review of the facts -- that the Court erred.
These three factors should influence the degree to which the Court restricts its review of a
prior ruling, but they do not necessarily mean that the Court should always apply a deferential
standard of review. The Court should pause before applying a standard of review to its own
interlocutory orders that is more deferential than the standard that the Court of Appeals will apply
to it, unless the Court concludes that the alleged error in the prior ruling was harmless, or the party

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moving for reconsideration waived their right to appeal the alleged error by not raising the
appropriate argument. Even in circumstances where the Court concludes that it is insulated from
reversal on appeal, there are principled reasons for applying a de novo standard. After all, if the
Court was wrong in its earlier decision, then, generally speaking, it is unjust to maintain that result
-- although the Court should weigh this injustice against any injustice that would result from
upending the parties’ reliance on the earlier ruling, which is the balancing test that the three factors
above represent.
What the Court means by “restricting its review” is less about applying a deferential
standard of review -- although that may be appropriate in some circumstances -- and more about
reducing (i) the depth of the Court’s analysis the second time around -- thus conserving judicial
resources; and (ii) the impositions that relitigation of the prior ruling will impose on the party
opposing the motion for reconsideration. The Court should consider the time and expense that the
party opposing reconsideration spent in winning the earlier ruling, and should try to prevent that
party from having to bear the same impositions again. Basically, even if the Court ultimately
analyzes a motion to reconsider under the same standard that it analyzed the motion that produces
the earlier ruling, it should analyze the motion in a different way -- one focused on reducing the
litigation burdens of the party opposing reconsideration. For example, when a party moves the
Court for a preliminary injunction, standard practice is that the Court holds an evidentiary
hearing as a matter of course, regardless whether it looks as if the party has a good chance of
prevailing.

If the party loses and the Court denies the injunction, however, and the party moves

for reconsideration, the party should not be entitled to the presumption of an evidentiary hearing

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merely because he or she received that presumption the first time that the Court considered the
motion.
In light of these statements, it is perhaps better to characterize the increased burden that a
movant for reconsideration faces as one of production and not of persuasion. The Court analyzes
motions to reconsider by picking up where it left off in the prior ruling -- not by starting anew.
Parties opposing reconsideration can do the same, and they may stand on whatever evidence and
argument they used to win the earlier ruling. Movants for reconsideration, on the other hand, carry
the full burden of production: they must persuade the Court, using only the evidence and argument
they put before it, that it should change its prior ruling; they must do all of the legwork, and not
rely on the Court to do any supplemental fact-finding or legal research; and they must
convincingly refute both the counterarguments and evidence that the opposing party used to win
the prior ruling and any new arguments and evidence that the opposing party produces while
opposing the motion to reconsider. Unlike the motion that produced the prior ruling, a motion to
reconsider is not -- and is not supposed to be -- a fair fight procedurally. The deck is stacked
against a movant for reconsideration, and if such a movant hopes to prevail, he or she must have
not only a winning legal position, but the work ethic and tenacity to single handedly lead the Court
to his or her way of thinking.
ANALYSIS
Kruskal asks the Court to reconsider its prior ruling on the ground that “Kruskal was not
previously aware that he was going to have to explain why he did not receive mail that the court
tech confirms did actually arrive at Kruskal’s server.” Motion to Reconsider at 4. Kruskal does
not, however, present sufficient grounds for the Court to change its Order Denying Motion to

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Reopen under rule 60(b). See Servants of the Paraclete v. Does, 204 F.3d at 1012 (“Grounds
warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.”).
Kruskal does not argue that there has been an intervening change in the controlling law.
He also does not argue that the Court clearly erred in denying his Motion to Reopen. Rather,
Kruskal argues that the Court made its ruling without the knowledge that an error with Kruskal’s
server delayed his receipt of the Notices of Electronic Filing of the Dismissal Order and the Final
Judgment. See Motion to Reconsider at 3. Kruskal admits, however, that he “went back into his
own archived mail to find that the [Court’s emails] did in fact arrive on 11/30/201[6],”6 and states
that he “thought that this court would make findings based on [its] ability to see when Kruskal had
opened the emails.” Motion to Reconsider at 3. The Court’s authority to reopen the time to file
an appeal is based on whether the moving party was served notice of the entry of judgment within
21 days after entry and not on when the moving party opened the notice.

See

Fed. R. App. P. 4(a)(6) (To reopen the time to appeal, the Court must find “that the moving party
did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or
order sought to be appealed within 21 days after entry”); Fed. R. Civ. P. 77(d) (“Service.
Immediately after entering an order or judgment, the clerk must serve notice of the entry as
provided in Rule 5(b).”); Fed R. Civ. P. 5(b) (“A paper is served under this rule by: . . .
(E) sending it by electronic means if the person consented in writing -- in which event service is
complete upon transmission, but is not effective if the serving party learns that it did not reach the
6

See supra, n.3.
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person to be served.”). Kruskal consented in writing to receive notifications by email, see Pro Se
Form at 1, and the judgment reached Kruskal, see Motion to Reconsider at 3. Kruskal was timely
served notice of the entry of judgment -- the same day the judgment was entered, in fact. See
Motion to Reconsider at 3; Final Judgment at 1. Accordingly, Kruskal received proper notice
under rule 77(d) of the Federal Rules of Civil Procedure, and he has not shown any new evidence
that is relevant to the appellate rule 4(a)(6) prerequisite for reopening the time to appeal.
IT IS ORDERED that Plaintiff’s Motion to Reconsi[]der Request to Reopen
Memorandum Op[]inion and Order Denying Motion to Reopen Case, filed January 11, 2018
(Doc. 11), is denied.

________________________________
UNITED STATES DISTRICT JUDGE
Parties:
Kerry Kruskal
Arroyo Seco, New Mexico
Plaintiff pro se
Juan Martinez
Diana Martinez
Defendants pro se

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