Kruskal v. Martinez et al
Filing
15
MEMORANDUM OPINION AND ORDER denying 14 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 DENYING MOTION TO RECONSIDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Reconsidder [sic]
Memorandum Oppinion [sic] and Order 8/20/2018 and Request for Documentation, filed August
31, 2018 (Doc. 14)(“Second Motion to Reconsider”). Plaintiff Kerry Kruskal appears pro se.
For the reasons set out below, the Court will deny Kruskal’s Second 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 (Doc. 1)(“Complaint”). In 2015, the Eighth District Court, County of Taos, State of
New Mexico, ruled on a contract dispute involving Kruskal, 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
e-mail. See CM/ECF Pro Se Notification Form at 1, filed September 29, 2016 (Doc. 3)(“Pro Se
Form”).
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 its Final Judgment on November 30,
2016. See Final Judgment at 1, filed November 30, 2016 (Doc. 8). On November 30, 2017, the
Court electronically emailed Notices of Electronic Filing of the Dismissal Order and the Final
Judgment to the email address Kruskal provided in his CM/ECF Pro Se Notification Form. See
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).
1
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Pro Se Form at 1. Kruskal did not file a notice of appeal.
Kruskal then 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 ¶ 1, 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
ha[d] not been met.” Memorandum Opinion and Order Denying Motion to Reopen Case at 4,
filed January 3, 2018 (Doc. 10)(“Order Denying Motion to Reopen”). 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.
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Kruskal offers no 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.
Order Denying Motion to Reopen at 3-4.
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 11/30/2015.” Motion to Reconsider at 3. 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.
The Court denied Kruskal’s Motion to reconsider noting that “Kruskal consented in writing
to receive notifications by email,” and “Kruskal was timely served notice of the entry of judgment
-- the same day the judgment was entered.” Memorandum Opinion and Order, filed August 18,
2018 (Doc. 13)(“Order Denying Reconsideration”). The Court concluded that “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.” Order Denying Reconsideration at 20.
Kruskal now asks the Court to reconsider its Order Denying Reconsideration and states he
is “perplexed that the court computer expert appears to so readily be able to find the delivery
receipt, but will not confirm that there is no read receipt.” Second Motion to Reconsider at 1.
“Kruskal requests that this court make the logs from the federal email system available to Kruskal
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 that Kruskal provided.
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(and/or his expert) such that Kruskal can prove that he never opened the emails.” Second Motion
to Reconsider at 1.
LAW REGARDING MOTIONS TO RECONSIDER
Except where the Federal Rules of Civil Procedure specify, motions to reconsider fall
into three categories:
(i) a motion to reconsider filed within [twenty-eight] days of the entry of
judgment is treated as a motion to alter or amend the judgment under rule 59(e);
(ii) a motion to reconsider filed more than [twenty-eight] days after judgment
is considered a motion for relief from judgment under rule 60(b); and (iii) a
motion to reconsider any order that is not final is 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. 453, 462 (D.N.M. 2009)(Browning, J.). See Price
v. Philpot, 420 F.3d at 1167; 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).
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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.
contrast, under rule 60,
[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
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In
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.
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.”
12 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)(quoting Osterneck v. Ernst
& Whinney, 489 U.S. 169, 174 (1989).
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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. . . .”). Mistakes in this context entail 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 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
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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).” 12 Moore’s Federal Practice § 60.48[2] (3d ed. 1999), 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 suggests that clause (6) and clauses (1) through (5) are
mutually exclusive.”). “The Rule does not particularize the factors that justify relief, but we
[, The Supreme Court of the United States,] have previously noted that it provides courts with
authority ‘adequate to enable them to vacate judgments whenever such action is appropriate to
accomplish justice,’” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. at 863-64 (quoting
Klapprott v. United States, 335 U.S. 601, 614-15 (1949)), “while also cautioning that it should
only be applied in ‘extraordinary circumstances,’” Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. at 864 (quoting Ackermann v. United States, 340 U.S. 193, 193 (1950)).
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
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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
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,” 3 compounds that baseline confusion. Fed. R. Civ. P. 59(e) (emphasis added);
Servants of the Paraclete v. Does, 204 F.3d at 1005.
3
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the United States Court
of Appeals for the Tenth Circuit, who authored Servants of the Paraclete v. Does, refers to rule
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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 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
59(e) motions as “motions to reconsider” several times throughout the opinion. See, 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 Courts of Appeals -- 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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appeals’ jurisdiction trumps the district court’s jurisdiction, 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 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. 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
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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 deescalation process, wherein the district court goes from pre-final judgment plenary 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 twenty-eight-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- 13 -
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 three 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.
Fed. R. Civ. P. 54(b). 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
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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 select the standard of review for 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.’”)(quoting Avita v.
Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)). 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” the court addressed a point depends both on the amount of 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, 4 than when
4
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
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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 that it challenges, and any direct evidence the
parties may produce, and use those factors to assess the degree of reasonable reliance that the
opposing party has placed in the court’s prior ruling. See 18B Charles Alan Wright, Arthur R.
Miller, Edward H. Cooper, Vikram David Amar, Richard D. Freer, Helen Hershkoff, Joan E.
Steinman & Catherine T. Struve, 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
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 twenty-eight-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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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 moving for reconsideration waived the right to appeal the alleged error by not raising the
appropriate argument. See Lopez v. Delta Int'l Mach. Corp., 312 F. Supp. 3d 1115, 1142
(D.N.M. 2018), aff'd sub nom. Lopez v. Stanley Black & Decker, Inc., 764 F. App'x 703 (10th
Cir. 2019). 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 -- 17 -
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 produced 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 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.
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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 and “requests that this court make the
logs from the federal email system available to Kruskal (and/or his expert) such that Kruskal can
prove that he never opened the emails.” Second Motion to Reconsider at 1. Kruskal does not
present sufficient grounds for the Court to change its Order denying Kruskal’s first Motion to
Reconsider. 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.
Nor does he argue that there is new evidence previously unavailable. Kruskal appears to argue
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that the Court should have made its ruling based on when Kruskal read the notice of the Court’s
ruling and not on when Kruskal received notice. Kruskal has acknowledged that “the letters 5 did
in fact arrive [in his email] on 11/30/2015.” Motion to Reconsider at 3.
A paper is served under this rule by . . . sending it to a registered user by filing it
with the court's electronic-filing system or sending it by other electronic means that
the person consented to in writing -- in either of which events service is complete
upon filing or sending, but is not effective if the filer or sender learns that it did not
reach the person to be served.
Fed. R. Civ. P. 5(b)(2)(E). Kruskal has not cited any legal authority supporting his contention
that a paper is served when the person to whom the paper was sent reads the paper. Consequently,
Kruskal has not shown that reconsideration is warranted by a need to correct a clear error.
IT IS ORDERED that the Plaintiff’s Motion to Reconsidder [sic] Memorandum Oppinion
[sic] and Order 8/20/2018 and Request for Documentation, filed August 31, 2018 (Doc. 14), is
denied.
__________________________________
UNITED STATES DISTRICT JUDGE
Parties:
Kerry Kruskal
Arroyo Seco, New Mexico
Plaintiff pro se
The word “letters” refers to the Notices of Electronic Filing of the Dismissal Order and
the Final Judgment the Court electronically mailed to the email address that Kruskal provided.
5
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Juan Martinez
Diana Martinez
Defendants pro se
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