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Auman v. State

United States District Court, D. Kansas

April 27, 2018

KEN AUMAN, Plaintiff,
v.
STATE OF KANSAS, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         This 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).[1] 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 Rule 60(b)).

         In the 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).

         The 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 later.

         The 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.

         When a 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.

         Rule 60(b) provides:

[T]he 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);
(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 ...

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