United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
matter comes before the court on plaintiff Ken Auman's
pro se “Motion for Extension of Time to Motion for
Re-Hearing under FRCP 59(e) or in the Alternative First
Motion for Re-Hearing” (Doc. 45). First, plaintiff
asks the court to extend the deadline to file a motion under
Rule 59(e) by 120 days. The court may not do so. See
Fed. R. Civ. P. 6(b)(2) (“A court must not extend the
time to act under Rules 50(b) and (d), 52(b), 59(b), and (e),
and 60(b).”). Alternatively, plaintiff asks the court
to treat this filing as a Rule 59(e) motion. The court lacks
jurisdiction to do so. See Watson v. Ward, 404 F.3d
1230, 1231 (10th Cir. 2005) (“[A] court lacks
jurisdiction over [an] untimely Rule 59(e) motion.”
(first citing Fed.R.Civ.P. 6(b); then citing Brock v.
Citizens Bank of Clovis, 841 F.2d 344, 347 (10th Cir.
1988))). But the court treats the filing as a Rule 60(b)
motion. See Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991) (holding that a district court
must construe an untimely Rule 59(e) motion as a motion under
following paragraphs, the court discusses why the motion is
untimely under Rule 59(e). Then, it analyzes the motion as
one under Rule 60(b).
court may not consider plaintiff's filing as a Rule 59(e)
motion because it is untimely. Rule 59(e) provides plaintiff
28 days after the entry of judgment to file a motion to alter
or amend judgment. Fed.R.Civ.P. 59(e). The court entered
judgment against plaintiff on January 29, 2018. Doc. 44.
Plaintiff filed this motion on February 28, 2018-30 days
court notes that the deputy clerk mailed the judgment to
plaintiff. Rule 6(d) extends deadlines by three days when a
party must act within a specified time after being served by
mail. Fed.R.Civ.P. 6(d). But Rule 6(d) does not apply here
because “the deadline is triggered by entry of
judgment”-not by service. City of Shawnee, Kan. v.
Argonaut Ins. Co., No. 06-2389-GLR, 2008 WL 2699906, at
*1 (D. Kan. July 2, 2008); see Parker v. Bd. of Pub.
Utilities of Kansas City, Kan., 77 F.3d 1289, 1290-91
(10th Cir. 1996) (“[the] period specified in Rule 59(e)
is triggered by entry of the judgment, not by service of
notice or other paper as contemplated by Rule 6[d].”).
Thus, Rule 6(d) cannot extend plaintiff's deadline even
though he was served with the judgment by mail. This makes
his motion untimely and the court thus lacks jurisdiction to
consider it. See Watson, 404 F.3d at 1231.
court lacks jurisdiction to consider a Rule 59(e) motion, it
must construe the motion as one under Rule 60(b). Van
Skiver, 952 F.2d at 1243. Accordingly, the court now
considers plaintiff's filing as a Rule 60(b) motion.
[T]he court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following
(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 ...