Opinion
CIVIL ACTION NO. 02-3721
November 3, 2003
ORDER
Before the Court is Barrick Gold Corporation's Motion to Reconsider (Rec. Doc. 88) and J.P. Morgan Chase Company's Motion and Incorporated Memorandum For Reconsideration of Order Denying Motion to Dismiss (Rec. Doc. 89) (collectively, the "Motions"). For the reasons discussed herein, the Motions are DENIED.
Barrick Gold Corporation ("Barrick") and J.P. Morgan Chase Company ("Morgan") (collectively "Defendants1') filed their Motions on September 17 and September 18, 2003, respectively, requesting that the Court reconsider or revise its Order and Reasons of September 3, 2003 because the Court (1) "erroneously makes findings of fact," (2) "reflects error in the application of the antitrust laws," and (3) because the Court "Should [Clarify] That The Predatory Pricing Claim" was dismissed.
The Federal Rules of Civil Procedure do not recognize a "motion for reconsideration" in those exact words. Lavspere v. Niagara Machine Tool Works, Inc., 910 F.2d 167, 1727 65th Cir. 1990). However, the Fifth Circuit has analogized a motion to reconsider a non-dispositive pre-trial motion to "a motion to `Galter or amend under Rule 59(e) or a motion for `Grelief from judgment' under Rule 60(b)M of the Federal Rules. Id. Under which rule consideration of Defendants' Motions is to be made is dependant upon when the Motions were filed with the Court.1 Because Barrick filed its Motion to reconsider on September 17, 2003, its motion is reviewed pursuant to Rule 59(e). Morgan's Motion was filed September 18, 2003, or more than ten days following this Court's Order and Reasons, and is therefore subject to review under the more exacting requirements of Rule 60(b). Id.
A motion filed pursuant to Rule 59(e) requires a filing within ten (10) business days of the dispositive motion which the party seeks to have reconsidered; if a motion seeking reconsideration is filed more than ten days after the dispositive motion, the motion is made pursuant to Rule 69(b) and will be reviewed pursuant to that rule.
Rule 59(e) gives the Court greater discretionary latitude in reviewing the reasons offered by the movant, merely providing that "any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." Fed.R. CIV. P. 59(e). That is distinguishable from Rule 60(b), which enumerates, thus limiting, the reasons a court may relieve a party from a previously issued order; the court is limited by that rule to situations where there has been excusable neglect, previously undiscoverable evidence, fraud or some similar malfeasance on the part of an adversary, where the judgement is void or otherwise inequitable, or "any other reason justifying relief from the operation of the judgment." Fed.R. CIV. P. 60(b). Because Morgan's motion is governed by the more restrictive Rule 60(b), and because its motion simply incorporates by reference the arguments posited in Barrick's motion, which is governed by the more flexible Rule 59(e), and because none of the arguments raised by Barrick are within the purview of Rule 60(b), denial of Barrick's motion to reconsider or amend the Court's Order and Reasons of September 3, 2003 necessarily forecloses Morgan's motion if reviewed pursuant to Rule 60(b).
The Court finds that, despite Defendants' lengthy articulation of its position, the Order and Reasons issued September 3, 2003 does not make findings of fact, does not reflect erroneous applications of antitrust doctrine, nor does it dismiss the predatory pricing claim.
Motions made pursuant to Rules 59(e) and 60(b), while in the appropriate circumstance offer the opportunity to correct grave errors of law or some other injustice resulting from an earlier order, are not intended to relitigate issues properly before the Court when it issued the challenged ruling, or raise new facts or arguments that were not then before the Court. Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 (5th Cir. 1989). This is what Defendants have attempted to do here. While Defendants are understandably dissatisfied with a ruling not in their favor, this is neither the time nor method to raise these issues again. Defendant's will have ample time to continue to challenge this matter in this Court as the case proceeds. Accordingly,
IT IS ORDERED that Barrick Gold Corporation's Motion to Reconsider is DENIED.
IT IS FURTHER ORDERED that J.P. Morgan Chase Company's Motion and Incorporated Memorandum For Reconsideration of Order Denying Motion to Dismiss is DENIED.