Opinion
Case No. 01-2309-JWL
October 2, 2002
MEMORANDUM ORDER
Pro se plaintiffs Julie and George Donner filed suit against defendant Lawrence Paper Company in the District Court of Douglas County, Small Claims Division, alleging that defendant failed to properly reimburse them under the Paper Company's medical plan for expenses incurred on medical care and prescriptions. Defendant properly removed the lawsuit to federal court and filed a motion for summary judgment. On February 15, 2002, this court issued an order granting defendant's motion for summary judgment. Donner v. Lawrence Paper Co., No. 01-2309-JWL, 2002 WL 303548, at *1 (D.Kan. Feb. 15, 2002). On March 5, 2002, plaintiffs filed a self-styled motion to reconsider which the court construed as a motion seeking relief from judgment pursuant to Rule 60(b). On April 30, 2002, this court issued an order denying plaintiffs' motion to reconsider. The matter is presently before the court on plaintiffs' motion seeking relief from the court's April 30, 2002, Memorandum and Order, (Doc. 46) filed pursuant to Rule 60(b).
Although plaintiffs' motion is labeled "Motion to Seek Relief From Judgment," plaintiffs acknowledge that they "are here to respond to the court's denial of [their] Motion and to ask for an appeal in this case."
"Relief under Rule 60(b) is extraordinary and may be granted only in exceptional circumstances." Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000).
[A] motion for reconsideration and a successive Rule 60(b) motion . . . are inappropriate 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. Absent extraordinary circumstances, not present here, the basis for the second motion must not have been available at the time the first motion was filed.
Id.; see also Van Skiver v. United States, 952 F.2d 1241, 1243-44 (10th Cir. 1991) (denying a Rule 60(b) motion that advanced issues previously addressed by the district court).
Here, plaintiffs' motion seeks relief from the court's April 30, 2002, Memorandum and Order, for the following reasons: (1) the court erred in construing plaintiffs' motion to reconsider as a Rule 60(b) motion; (2) the court erred in denying plaintiffs' motion to reconsider; and (3) the court erred in denying plaintiffs' motion to vacate judgment.
Plaintiffs first argue that the court erred in failing to construe plaintiffs' motion to reconsider as a Rule 59(e) motion. Plaintiffs' position hinges on their continued belief that they should have been given three days for mailing in accordance with Rule 6(e). The court previously rejected this argument in its April 30, 2002, Memorandum and Order, explaining that the Tenth Circuit has rejected this view. See April 30, 2002, Memorandum and Order (citing Parker v. Bd. of Pub. Utils., 77 F.3d 1289, 1290-91 (10th Cir. 1996) (holding that Rule 6(e) does not apply to extend time limits to file Rule 59(e) motion). Therefore, this argument is not a proper basis for Rule 60(b) relief.
Next, plaintiffs argue that the court erred in denying their motion to reconsider. Plaintiffs advance three arguments in support of this position: they contend that they have new evidence that defendant did not follow its appeals procedure, they argue they exhausted their administrative remedies, and they contend that the court's advice caused them to compromise disputed claims, which in turn caused them to lose this lawsuit.
With regard to plaintiffs' first argument, they allege that Liz Stark's affidavit, which was attached to defendant's motion for summary judgment, establishes that defendant did not follow its appeals procedure. Plaintiffs further allege that they were unable to previously obtain this information because defendant failed to respond to plaintiffs' discovery request relating to this issue. Even assuming plaintiffs' position is correct, it does not rely on new evidence. Liz Stark's affidavit was attached to defendant's motion for summary judgment. Thus, plaintiffs could have made this argument in responding to defendant's motion for summary judgment. Accordingly, this position is not the proper basis for Rule 60(b) relief. Plaintiffs' argument that they exhausted their administrative remedies is also not a new argument. Instead, it is merely a rehash of the argument plaintiffs made in their motion to reconsider. Thus, it is also an insufficient basis for Rule 60(b) relief. Similarly, plaintiffs' argument that the court's advice caused it to compromise disputed claims is an argument that plaintiffs made in their motion for reconsideration. Plaintiffs provide no new evidence to support their argument, and the court previously rejected the argument. Therefore, it too is not a proper basis for Rule 60(b) relief.
Lastly, plaintiffs contend that the court improperly denied their motion to vacate the judgment against them for defendant's costs because plaintiffs exhausted their administrative remedies and because the payment of disputed claims by defendant amounted to an admission of liability. Much like plaintiffs' arguments relating to the motion to reconsider, these arguments are not new. Instead, they are arguments that plaintiffs advanced in their motion to reconsider. Because the plaintiffs also failed to provide new evidence to support these positions and the court has previously rejected them, they similarly fail to form the basis for a Rule 60(b) motion.
In sum, plaintiffs' successive Rule 60(b) motion either revisits issues already discussed and dismissed by the court or advances new arguments relying on evidence that was available when defendant's original summary judgment motion was filed. Accordingly, plaintiffs' motion fails to set forth a proper basis for relief under Rule 60(b) and it is therefore denied.
Plaintiffs state in their papers that they should be permitted to appeal the court's previous rulings. The court cannot agree. Plaintiffs have not filed a timely notice of appeal, and a Rule 60(b) motion does not toll the time for appealing. Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995). Plaintiffs, of course, may appeal the court's current order if the appeal is filed within 30 days from the date that this order is file stamped. Fed.R.App.P. 4(a)(1) (stating that parties have 30 days after the judgment or order appealed from is entered to file a notice of appeal with the district clerk).
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs' motion seeking relief from the court's April 30, 2002, Memorandum and Order, (Doc. 46) is denied.
IT IS SO ORDERED this 2nd day of October, 2002.