United States District Court, D. Kansas
LISA M. KING, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
matter is before the court on Plaintiff's Motion for
Relief from Judgment pursuant to Federal Rule of Civil
Procedure 60(b)(1) and (2). (Docs. 40, 41). The Acting
Commissioner of the Social Security Administration
(hereinafter Commissioner) has filed her Response, Plaintiff
has filed a Reply, and the matter is ripe for decision.
December 15, 2016, the court issued a Memorandum and Order
affirming the April 29, 2014 decision of the Commissioner
denying Plaintiff's application for a period of
disability and disability insurance benefits. (Doc. 28).
Judgment was entered the same day. (Doc. 29). Plaintiff filed
a motion to alter judgment pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure on January 12, 2017, which
the court denied as unjustified on February 8, 2017. (Docs.
30, 34). Plaintiff appealed pro se on April 10,
2017, and the appeal was dismissed for lack of prosecution by
the Tenth Circuit on August 3, 2017. (Docs. 35, 39). On
January 26, 2018, Plaintiff's former counsel filed the
Motion for Relief from Judgment at issue. (Doc. 40).
relevant here, Rule 60(b) provides that:
motion and just terms, the court may relieve a party or its
legal representative 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).
Fed. R. Civ. P. 60(b)(1-2).
should grant relief under Rule 60(b) only in exceptional
circumstances and the movant “must overcome a higher
hurdle to obtain relief from a post-judgment motion than on
direct appeal from a judgment.” Dronsejko v.
Thornton, 632 F.3d 658, 670 (10th Cir. 2011) (quoting
LaFleur v. Teen Help, 342 F.3d 1145, 1153 (10th Cir.
Rule 60(b)(1) provides for reconsideration of judgments only
where: (1) a party has made an excusable litigation mistake
or an attorney in the litigation has acted without authority
from a party, or (2) where the judge has made a substantive
mistake of law or fact in the final judgment or order.
Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576
(10th Cir. 1996).
the mistake alleged is a party's litigation mistake, the
court will deny relief where the mistake was the result of a
deliberate and counseled decision of the party. Id.
98 F.3d at 577. “Similarly, Rule 60(b)(1) relief is not
available for a party who ...