Opinion
CIVIL ACTION No. 02-2555-CM
January 23, 2004
MEMORANDUM AND ORDER
This matter comes before the court on Defendant's Rule 59(e) Motion to Alter or Amend Judgment (Doc. 21). Defendant argues that, contrary to the court's determination in its December 18, 2003, Order, defendant filed its objections to the magistrate judge's report and recommendation in time. Defendant also requests that the court reconsider its order and rule in its favor.
Defendant filed its motion within 10 days of the court's order; it is therefore properly brought under Federal Rule of Civil Procedure 59(e). Hatfleld v. Bd. of County Comm'rs for Converse County, 52 F.3d 858, 861 (10th Cir. 1995); D. Kan. Rule 7.3(a). Reconsideration is proper when there has been a manifest error of law or fact, when new evidence has been discovered, or when there has been a change in the relevant law. Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948 (10th Cir. 1995); Rasdall v. Barnhart, No. 01-4043-JAR, 2003 WL 22939244 (D. Kan. Nov. 25, 2003).
Defendant contends that although Rule 72(b) requires a party to file objections to a magistrate's report and recommendation within 10 days, defendant actually had 17 calendar days in which to file a response due to the interaction of Rules 6(a), 6(e), and 5(b)(1)(D). Defendant's statement of the time period under the Federal Rules is correct. Although Rule 5(b)(1)(D) states that service by electronic means is complete on transmission, Rule 6(e) still provides parties an additional 3 days in which to respond when service is by electronic means. The magistrate judge issued his report and recommendation on October 20, 2003; therefore, pursuant to Rules 6(a) and 6(e), defendant had until November 6, 2003 to file its objections. Because defendant filed its objections on November 5, 2003, the court concludes that defendant filed within time.
Nevertheless, the court's finding with regard to the timing of defendant's objections does not change the substance of its holding in its original order. As the court stated in its Order entered December 18, 2003: "Even had the court considered defendant's objections, however, the court's decision regarding Judge Waxse's recommendation would remain the same." The court reaffirms its conclusion and adopts Judge Waxse's report and recommendation that substantial evidence did not support the ALJ's conclusion that drug addiction and alcoholism were contributing factors to a finding of plaintiff's disability.
IT IS THEREFORE ORDERED that the court grants in part and denies in part Defendant's Rule 59(e) Motion to Alter or Amend Judgment (Doc. 21). The court alters its finding in its original order that defendant filed its objections out of time, but does not alter its ultimate conclusion to adopt Magistrate Judge David J. Waxse's Report and Recommendation in its entirety. The court hereby reverses the Commissioner's decision and, pursuant to 42 U.S.C. § 405(g), remands the case for an immediate award of benefits.