Opinion
CA 99-0979-C.
November 28, 2000.
JUDGMENT
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the plaintiff's Rule 59(e) motion to alter or amend the judgment and its alternative Rule 60(b)(6) motion for relief from judgment be and the same hereby are DENIED.
MEMORANDUM OPINION AND ORDER
This cause is before the Court, pursuant to 28 U.S.C. § 636(c), on plaintiff's motion to alter, amend or vacate the judgment under Fed.R.Civ.P. 59 or, in the alternative, motion for relief from judgment under Rule 60(b) (Doc. 38) and the defendants' responses to these post-judgment motions (Docs. 40 41). Upon consideration of the contents of the briefs and the arguments of counsel on November 27, 2000, the Court DENIES plaintiff's post-judgment motions.
FINDINGS OF FACT
1. This Court signed an order and judgment in favor of the defendants on all claims made by the plaintiff on October 12, 2000. (Docs. 36 37) The judgment was entered on the docket on October 17, 2000 by the Clerk of Court. (Doc. 37)
2. During the week of October 23, 2000, plaintiff's counsel tried a similar case against defendant John Deere in the Circuit Court of Bullock County, Alabama. The jury rendered a verdict in favor of the plaintiff in that case on its fraudulent suppression claim against John Deere on October 26, 2000.
3. This Court spoke with counsel for the parties on October 27, 2000 regarding plaintiff's desire to file a post-judgment attack on the Court's summary judgment decision.
4. On November 3, 2000, plaintiff filed in this Court a motion to alter, amend or vacate the aforementioned summary judgment, pursuant to Rule 59, or, in the alternative, a motion for relief from judgment pursuant to Rule 60(b). (Doc. 38) These motions are directed solely to plaintiff's fraudulent suppression claim against John Deere. ( See id.) The plaintiff contends that new evidence came to light during the trial in Bullock County that would change this Court's judgment respecting the fraudulent suppression claim asserted against John Deere.
CONCLUSIONS OF LAW
A. Rule 59(e) Motion to Alter or Amend the Judgment .
1. Plaintiff first seeks to alter, amend or vacate the summary judgment entered against it on October 17, 2000, pursuant to Fed.R.Civ.P. 59(e). Rule 59(e) provides simply that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment."
2. "[A]n untimely filed motion to alter or amend cannot invoke a [district] court's jurisdiction." Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1129 (11th Cir. 1994). The ten day period set forth in Rule 59(e), therefore, "is jurisdictional and cannot be extended by the court." Wright v. Preferred Research, Inc., 891 F.2d 886, 890 (11th Cir. 1990), citing Fed.R.Civ.P.6(b); see also Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1113 (11th Cir. 1993) ("'The ten day period for serving new trial motions is jurisdictional and cannot be extended in the discretion of the district court.'"); see Fed.R.Civ.P.6(b) ("[A court] may not extend the time for taking any action under Rules 50(b) and (c)(2), 52(b), 59(b), (d) and (e), and 60(b), except to the extent and under the conditions stated in them.").
3. This ten day period, however, need be read in conjunction with Rule 6(a) which provides, in pertinent part, that "[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Fed.R.Civ.P. 6(a). In this case, therefore, counting ten days from the day after entry of judgment, that is, October 18, 2000, and excluding intermediate Saturdays, Sundays and legal holidays, leads to the conclusion that plaintiff should have filed its Rule 59(e) motion on or before the close of business on October 31, 2000.
4. Since plaintiff did not file his Rule 59(e) motion until November 3, 2000, the sole issue becomes for this Court whether Rule 6(e) gave to plaintiff an additional three days to file its post-judgment motion thereby making its November 3, 2000 filing timely. Rule 6(e) provides that "[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period." Fed.R.Civ.P. 6(e). It is clear in this case that plaintiff was served with the judgment in this case by mail, thereby underscoring its Rule 6(e) argument. Unfortunately for Ison Logging though the Eleventh Circuit Court of Appeals has made it all too clear that "there is no interplay between Rules 6(e) and 59." Cavaliere, supra, 996 F.2d at 1113. Rule 59(e), in fact, provides that the ten days within which a motion to alter or amend the judgment must be filed begins to run from "entry of judgment" rather than from receipt of notice and Fed.R.Civ.P. 6(b) prohibits enlargement of such time. See id. at 1114. Therefore, "Rule 6(e)'s three-day provision is inapplicable to service deadlines" for a motion to alter or amend a judgment under Rule 59(e). See id. at 1113 1114 (following Third Circuit's Rule 59(e) holding in the context of a Rule 59(b) case because the service provisions under Rule 59(b) and 59(e) are identical); see also Aguilar v. Federal Deposit Ins. Corp., 63 F.3d 1059, 1061 n. 1 (11th Cir. 1995) ("Until 1993, we had not decided that Civil Rule of Procedure 6(e), which adds 3 days to the prescribed time to act or to respond after notice is served by mail, was not applicable to Rule 59.").
5. In light of the foregoing, this Court lacks the jurisdiction to consider plaintiff's tardy motion to alter or amend the judgment. Therefore, plaintiff's Rule 59(e) motion is DENIED.
B. Motion for Relief From Judgment Pursuant to Rule 60(b) .
6. In the alternative, plaintiff seeks relief from judgment pursuant to Fed.R.Civ.P. 60(b). It is at least arguable that plaintiff's alternative motion is appropriate in this circuit. Nisson v. Lundy, 975 F.2d 802, 806 (11th Cir. 1992) (finding that a Rule 59(e) motion may be treated as a 60(b) motion "if grounds stated would be a basis for Rule 60(b) relief."); see Rice v. Ford Motor Co., 88 F.3d 914, 918 (11th Cir. 1996) ("[W]e treat Ford's motion as arising under Rule 60(b)(6), the 'catch-all' provision allowing motions based on any 'reason justifying relief' not included in the preceding clauses of the rule. Ford alleges that it did not learn of the voluntary dismissal until September 8, 1993, the last day on which Ford could have filed a timely Rule 59(e) motion. It would hardly promote 'substantial justice' to pigeonhole Ford's motion under Rule 59(e), with which Ford arguably could not have complied, and preclude consideration of its motion under any other rule."); but cf. Hertz Corp., supra, 16 F.3d at 1128 ("Rule 60(b)(6) is reserved for instances of genuine injustice, and does not permit a party or a judge to circumvent the clear commands of Rules 6(b) and 59(e). Rule 6(b) forbids a court to enlarge the time within which a Rule 59(e) motion may be served; condoning the trial court's use of Rule 60(b)(6) would serve to undermine finality, resurrect Boaz v. Mutual Life Ins. Co., 146 F.2d 321 (8th Cir. 1944), and defeat the ends of Rules 6(b) and 59(e)."). When asked during oral argument which subsection of Rule 60(b) plaintiff was seeking the Court to provide it relief from judgment, counsel for plaintiff referred to subsection (6).
7. Rule 60(b)(6) provides that a district court "may relieve a party . . . from a final judgment . . . for . . . any other reason justifying relief from the operation of the judgment." "Federal courts grant relief under Rule 60(b)(6) only for extraordinary circumstances." Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th Cir.) (citation omitted), cert. denied, ___ U.S. ___, 121 S.Ct. 46, ___ L.Ed.2d ___ (2000); see also United States v. Certain Real Property Located at Route 1, 126 F.3d 1314, 1318 (11th Cir. 1997) ("We have characterized this umbrella provision as a '"grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses."' . . . 'It is well-established . . . that relief under this clause is an extraordinary remedy which may be invoked only upon a showing of exceptional circumstances.'").
8. While this Court identifies more readily with the decision of the Eleventh Circuit in Hertz Corp., supra, and finds that plaintiff cannot be allowed to circumvent the clear commands of Rules 6(b) and 59(e) by filing a concurrent Rule 60(b)(6) motion when it easily could have filed a timely Rule 59(e) motion, the Court nonetheless alternatively finds that plaintiff has not presented the type of extraordinary circumstances necessary for granting relief under Rule 60(b)(6). A slight difference between the trial and deposition testimony of a third party in a similar case simply does not fall within the narrow circumstances circumscribed for relief by Rule 60(b)(6). See United States v. Certain Real Property Located at Route 1, supra, 126 F.3d at 1318. Therefore, plaintiff's alternative Rule 60(b)(6) motion is DENIED as well.
CONCLUSION
Plaintiff's Rule 59(e) motion to alter or amend the judgment and its alternative Rule 60(b)(6) motion for relief from judgment (Doc. 38) are DENIED.