United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
23, 2019, the court granted defendants' Motions to
Dismiss and entered judgment dismissing plaintiff's case.
Docs. 42 & 43. On October 21, 2019, plaintiff filed a
Motion for Copy of Memorandum and Order and Motion to File a
Fed.R.Civ.P. 59(e) or 60(b) Motion Out of Time. Doc. 44.
Plaintiff is incarcerated and proceeds pro se. Plaintiff asserts
that he did not receive a copy of the court's Order on
the Motions to Dismiss. Doc. 44 at 2-3. Plaintiff thus
requests a copy of the court's Order and asks the court
for an extension of time to file a motion to alter or amend
the judgment and/or for relief from judgment. Doc. 44 at 3-5.
Defendants oppose plaintiff's motion to the extent it
seeks leave to file a Rule 59(e) and/or 60(b) motion. Doc.
Extension of Time to File Rule 59(e) and/or Rule 60(b)
Federal Rules of Civil Procedure do not permit extensions of
time for filing motions to alter or amend a judgment under
Rule 59(e) or motions for relief from judgment under Rule
60(b). See Fed. R. Civ. P. 6(b)(2) (“A court
must not extend the time to act under Rules . . . 59(e) . . .
and 60(b).”); see also Allen v. Schmutzler,
401 Fed.Appx. 355, 357 n.3 (10th Cir. 2010) (explaining
district courts are prohibited from extending the time to
file a motion for reconsideration under 59(e) or 60(b));
Brown v. McKune, 162 Fed.Appx. 795, 796 (10th Cir.
2006) (explaining that the Tenth Circuit has
“consistently held a district court is without
authority to extend the time for filing a Rule 59(e)
motion”); Weitz v. Lovelace Health Sys., Inc.,
214 F.3d 1175, 1179 (10th Cir. 2000) (explaining that
“Rule 59 provides no exceptions” to the 28-day
time requirement, and thus, “the district court lacked
authority to grant Appellant's motion for additional time
to file her 59(e) motion.”). So, the court lacks legal
authority to grant the Rule 6(b)(2) motion and extension that
59(e) motion “must be filed no later than 28 days after
the entry of the judgment.” Fed.R.Civ.P. 59(e). And the
time for plaintiff to file such a motion to alter or amend
the judgment has expired here. Because the Federal Rules of
Civil Procedure prohibit the court from granting any
extension of time to file a Rule 59(e) motion, the court
denies plaintiff's motion seeking such relief.
See Fed. R. Civ. P. 6(b)(2).
60(b) motion “must be made within a reasonable
time.” Fed.R.Civ.P. 60(c)(1).A motion to reconsider on the
grounds recognized in Rule 60(b)(1), (2), or (3) may be filed
“no. more than a year after the entry of the judgment
or order.” Fed.R.Civ.P. 60(c)(1). And, such a motion
“is not timely merely because it has been filed within
one year of the judgment.” White v. Am. Airlines,
Inc., 915 F.2d 1414, 1425 (10th Cir. 1990). Instead, the
timeliness depends on the facts of each case. United
States v. Lyman, No. 98-4109, 1998 WL 894950, at *4
(10th Cir. Dec. 24, 1998). To determine whether a Rule 60(b)
motion is timely, “the court examines ‘the facts
of each case, taking into consideration the interest in
finality, the reason for delay, the practical ability of the
litigant to learn earlier of the grounds relied upon, and
prejudice to other parties.”' Mullin v. High
Mountain, 182 Fed.Appx. 830, 833 (10th Cir. 2006)
(quoting Ashford v. Steuart, 657 F.2d 1053, 1055
(9th Cir. 1981)); see also Saggiani v. Strong, 718
Fed.Appx. 706, 710 (10th Cir. 2018).
argue that plaintiff has failed to file a Rule 60(b) motion
within a reasonable time. See Doc. 45 at 3-4. Because the
time for appeal has passed, defendants contend, “the
interest of finality must be given great weight.”
Id. at 3 (citing Ashford, 657 F.2d 1053). Defendants
assert that plaintiff continually has sought to delay this
proceeding and the current request is yet another attempt to
delay. Id. at 4. And, defendants claim, plaintiff
had a duty to monitor the docket and his motion shows he
failed to do so. Id. at 5. So, defendants argue, the
interests of judicial economy and efficiency support a
conclusion that the time to file a Rule 60(b) motion has
passed and defendants are entitled to finality. Id.
current motion doesn't specifically identify which part
of Rule 60(b)(1)-(6) he invokes to seek relief from judgment.
Indeed, plaintiff's motion indicates he does not have a
copy of the court's previous Order to determine what
grounds could exist. Without knowing the grounds, if any, on
which plaintiff seeks relief, the court cannot determine
whether the “reasonable time” in which plaintiff
must file a Rule 60(b) motion has expired. Cf. Spitznas
v. Boone, 464 F.3d 1213, 1225 (10th Cir. 2006) (noting
that a motion made under Rule 60(b)(4) “may be brought
at any time” and a motion under Rule 60(b)(6)
“must be brought within a reasonable time, ”
which could exceed one year); United States v. Buck,
281 F.3d 1336, 1340 (10th Cir. 2002) (explaining that, in the
interest of having closure for litigation, motions for relief
from judgment that are filed “long after the time for
appeal [has] expired” should be granted only for
compelling reasons). Regardless, under the Federal Rules of
Civil Procedure the court lacks authority to grant
plaintiff's request for an extension of time to file a
Rule 60(b) motion. So, the court denies plaintiff's
motion seeking such relief. See Fed. R. Civ. P.
Extension of Time to File an Appeal
also contends he was “deprived of his Constitutional
right to file a timely notice of appeal.” Doc. 44 at 5.
Because plaintiff proceeds pro se, the court liberally
construes plaintiff's motion seeking to file a Rule 59(e)
or Rule 60(b) motion out of time as one that seeks an
extension of time to file an appeal. See Jenkins v.
Burtzloff, 69 F.3d 460, 463 (10th Cir. 1995) explaining
that a pro se litigant must make a manifest request for
additional time for a court to find the litigant has made a
request for an extension of time to file an appeal because a
mere notice of appeal, without anything “suggesting a
request for extension of time or even a recognition of the
lateness problem, ” is insufficient and cannot be
treated as a motion for extension of time); Ogden v. San
Juan Cty., 32 F.3d 452, 454-55 (10th Cir. 1994)
(discussing the Tenth Circuit's previous remand order to
the district court to determine if it should reopen the time
to appeal where plaintiff claimed he did not receive the
district court's order dismissing the case and Tenth
Circuit concluded “[b]ecause by proffering an excuse,
the plaintiff appeared to recognize he had a timeliness
problem, we liberally construe the notice of appeal as a
motion to reopen for appeal pursuant to Fed. R. App. P.
the Federal Rules of Appellate Procedure, an appellant must
file a notice of appeal in a civil case “within 30 days
after the judgment or order appealed from.” Fed. R.
App. P. 4(a)(1)(A). This 30-day period may be tolled by
filing a timely Rule 59(e) or Rule 60(b) motion,
i.e., if motions under those rules are filed no
later than 28 days after the judgment is entered. Fed. R.
App. P. 4(a)(4)(A)(iv), (vi); see also Allender v.
Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir.
2006); Weitz, 214 F.3d at 1178. And, a district
court “may extend the time to file a notice of
appeal” if the party seeking to appeal moves for an
extension “no later than 30 days after” the time
to appeal has expired and “shows excusable neglect or
good cause.” Fed. R. App. P. 4(a)(5)(A); see also
Certain Underwriters at Lloyds of London v. Evans, 896
F.2d 1255, 1256 (10th Cir. 1990). Here, the periods for
filing a Rule 59(e) or Rule 60(b) motion that would toll the
time to appeal and within which the court may grant plaintiff
an extension to appeal under Fed. R. App. P. 4(a)(5) have
“lack of notice of the entry [of an order or judgment]
does not affect the time for appeal or relieve-or authorize
the court to relieve-a party for failing to appeal within the
time allowed . . . .” Fed.R.Civ.P. 77(d)(2); see
also Jenkins, 69 F.3d at 461-62 (explaining that the
time for filing an appeal runs from the date of entry, which
is the date of the entry on the docket, even where prisoner
does not receive notice of the order ...