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In Donner, this court, referencing Local Rule 6.2, suggested that the file-stamp date appearing on a judgment was the relevant date for purposes of calculating the limitation period for filing a Rule 59(e) motion.
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Case No. 01-2309-JWL
April 30, 2002
MEMORANDUM ORDER
Pro se plaintiffs Julie and George Donner filed suit against defendant Lawrence Paper Company in the District Court of Douglas County, Small Claims Division, alleging that defendant failed to properly reimburse them under the Paper Company's medical plan for expenses incurred on medical care and prescriptions. Defendant properly removed the lawsuit to federal court and filed a motion for summary judgment which this court granted. Donner v. Lawrence Paper Co., No. 01-2309-JWL, 2002 WL 303548, at *1 (D.Kan. Feb. 15, 2002). The matter is presently before the court on plaintiffs' motion for reconsideration of memorandum and order (Doc. 40), plaintiffs' motion to vacate judgment (Doc. 41) and plaintiffs' motion to extend time to pay sanctions (Doc. 39). For the reasons set forth below, plaintiffs' motions are denied.
I. Motion to Reconsider
Plaintiffs filed a self-styled motion to reconsider on March 5, 2002. The Federal Rules of Civil Procedure do not include a "motion to reconsider." Hawkins v. Evans, 64 F.3d 543, 546 (10th Cir. 1995); Van Skiver v. U.S., 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). Instead, the rules permit a party subject to an adverse judgment to file either a motion seeking relief from the judgment pursuant to Rule 60(b) or a motion to alter or amend the judgment pursuant to Rule 59(e). Hawkins, 64 F.3d at 546; Van Skiver, 952 F.2d at 1243. If a motion is filed within ten days of the district court's entry of judgment, then it is normally treated as a Rule 59(e) motion to alter or amend the judgment. Hawkins, 64 F.3d at 546; Van Skiver, 952 F.2d at 1243. If the motion is filed more than ten days after entry of judgment, then it must be treated as a Rule 60(b) motion for relief from judgment. Hawkins, 64 F.3d at 546; Van Skiver, 952 F.2d at 1243. In the instant action, plaintiffs' motion to reconsider was not filed within ten days of this court's entry of judgment. Plaintiffs concede that their motion was not filed within ten days but argue that it nonetheless is timely because Rule 6(e) applies to give them three extra days to file a Rule 59(e) motion. The Tenth Circuit, however, has rejected this contention. See Parker v. Board of Pub. Utils., 77 F.3d 1289, 1290-91 (10th Cir. 1996). In Parker, the Tenth Circuit held that Rule 6(e) does not apply to extend the time limits to file a Rule 59(e) motion because the ten-day deadline "is triggered by entry of judgment, not by service of notice or other paper as contemplated by Rule 6(e)." Id. Thus, plaintiffs' motion was not filed within the ten-day deadline mandated by Rule 59(e) and it must be construed as a Rule 60(b) motion for relief from judgment.
The file stamp date on the district court's judgment is February 15, 2002. According to D. Kan. Rule 6.2, the file stamp date is controlling on limitation period issues. D. Kan. Rule 6.2 ("Unless specifically provided otherwise, in determining filing deadlines under both the federal procedural rules and the local rules of this court, the relevant date for calculating a limitation period dependent on the filing of a court order shall be the file stamp date appearing on the order.") Pursuant to Rule 6(a), the ten-day time period for plaintiffs to file a Rule 59(e) motion ended on March 4, 2002. Fed.R.Civ.P. 6(a). Plaintiffs' motion to reconsider was filed on March 5, 2002.
The Supreme Court has stated that a court can extend the time limits for filing a Rule 59(e) motion if there are "unique circumstances." See Thompson v. INS, 375 U.S. 384, 387 (1964). The Court, however, has strictly construed the "unique circumstances" doctrine and limited its applications to circumstances "where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done." Osterneck v. Ernst Whinney, 489 U.S. 169, 179 (1989); see also Weitz v. Lovelace Health System, Inc., 214 F.3d 1175, 1178-81 (10th Cir. 2000) (discussing the Supreme Court's limitation of the "unique circumstances" doctrine). In the instant action, plaintiffs did not attempt to postpone the deadline for filing. Consequently, the "unique circumstances" doctrine is clearly not applicable.
Plaintiffs' motion either revisits the issues already discussed and dismissed by this court or creates new arguments that were available when the original summary judgment motion was briefed. According to the Tenth Circuit, "revisiting the issues already addressed is not the purpose of a motion to reconsider, and advanc[ing] new arguments or supporting facts which were otherwise available for presentation when the original . . . motion was briefed is likewise inappropriate." Van Skiver, 952 F.2d at 1243 (internal quotations and citations omitted); see also Cashner, 98 F.3d at 576. As in Van Skiver, on this basis alone the court denies plaintiffs' motion to reconsider.
Plaintiffs do make an argument in their motion that could not have been made in their earlier papers related to amending the judgment for costs. Plaintiffs make a similar argument in their motion to vacate judgment and the court will address the issue in its analysis of that motion.
The court does not need to reach the merits of plaintiffs' motion to reconsider because plaintiffs have failed to set forth any basis for Rule 60(b) relief. Van Skiver, 952 F.2d at 1243. "[R]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances." Cashner, 98 F.3d at 576 (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)); see also Servants of the Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). A party can show exceptional circumstances "by satisfying one or more of Rule 60(b)'s six grounds for relief from judgment." Van Skiver, 952 F.2d at 1243-44. Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
In the instant action, plaintiffs' motion does not cite any of the exceptional circumstances warranting relief under Rule 60(b), nor does the court's reading of the parties' papers and the record disclose any. Plaintiffs' motion to reconsider reiterates the original issues raised in their papers and seeks to explain why the court misunderstood their position. "Such arguments are properly brought under Rule 59(e) within ten days of the district court's judgment or on direct appeal but do not justify relief from the district court's judgment pursuant to Rule 60(b)." Van Skiver, 952 F.2d at 1244; see also Cashner, 98 F.3d at 577.
Construing the motion in a manner most favorable to plaintiffs, given their pro se status, see Van Skiver, 952 F.2d at 1244 (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), the court will analyze plaintiffs' motion as attempting to invoke either Rule 60(b)(1) or Rule 60(b)(6). Rule 60(b)(1) permits the court to relieve a party from final judgment for "mistake, inadvertence, surprise, or excusable negligent." Fed.R.Civ.P. 60(b)(1). The only Rule 60(b)(1) ground for relief arguably pertinent is mistake. The Tenth Circuit has held that generally "the 'mistake' provision in Rule 60(b)(1) provides for the reconsideration of judgments only where: (1) a party has made an excusable litigation mistake or an attorney in the litigation has acted without authority from a party, or (2) . . . the judge has made a substantive mistake of law or fact in the final judgment or order." Cashner, 98 F.3d at 576. When Rule 60(b)(1) is used to challenge a substantive ruling, the Tenth Circuit requires that such a motion be filed within the time limit required for the filing of a notice of appeal, see id. at 578, and "is available only for obvious errors of law, apparent on the record." Van Skiver, 952 F.2d at 1244 (citing Alvestad v. Monsanto Co., 671 F.2d 908, 912-13 (5th Cir. 1982); Rocky Mountain Tool Mach. Co. v. Tecon Corp., 371 F.2d 589, 596-97 (10th Cir. 1966)).
In the instant action, although plaintiffs' motion was filed within the 30 day time limit required for filing a notice of appeal, the motion does not allege any facially obvious errors of law. Instead, plaintiffs' motion either reargues their positions, provides new evidence for their previous arguments, or advances new arguments. In short, after thoroughly reviewing plaintiffs' arguments, the court does not believe that they raise an obvious error of law.
Rule 60(b)(6) permits the court to relieve a party from final judgment for "any other reason justifying relief." Fed.R.Civ.P. 60(b)(6). The Tenth Circuit has described Rule 60(b)(6) as a "grand reservoir of equitable power to do justice in a particular case." Cashner, 98 F.3d at 579 (further citations omitted). However, this court "may grant a Rule 60(b)(6) motion only in extraordinary circumstances and only when necessary to accomplish justice." Id. (further citations omitted). The Tenth Circuit has found such extraordinary circumstances to be present, for example, when, after entry of judgment, "events not contemplated by the moving party render enforcement of the judgment inequitable." Id. (citing Tenth Circuit cases illustrating an unanticipated intervening change of circumstances). In the instant action, there has not been a showing of a change in circumstances nor does the court find that this is a situation where justice requires granting plaintiffs' motion. Accordingly, plaintiffs' motion to reconsider is denied.
II. Motion to Vacate Judgment
Plaintiffs also ask the court to vacate the judgment against them for defendant's costs. On February 15, 2002, the Clerk of the Court entered a judgment against plaintiffs dismissing the action on the merits and permitting defendant to recover from plaintiffs its costs. Plaintiffs now seek to have the judgment vacated because, according to plaintiffs, defendant has actually admitted guilt by previously paying two of plaintiffs' prescription drug expenses. Plaintiffs provide documentation that defendant paid them $101.10 for prescription drug expenses.
While plaintiffs' motion asks the court to vacate the judgment entered against them on February 19, 2002, because plaintiffs filed a separate motion to reconsider, the court will address only the judgment against them for defendant's costs.
Although plaintiffs contend that the judgment was entered on February 19, 2002, that was the date the judgment was entered on the docket. The judgment is file stamped February 15, 2002 and that date is controlling on limitations period issues. D. Kan. Rule 6.2.
After plaintiffs filed their lawsuit against the Lawrence Paper Company, the Paper Company sent plaintiffs two checks, one sent on January 23, 2001 for $27.99 and one sent on December 7, 2001 for $73.11, for prescription drug expenses that plaintiffs allege were submitted to the Paper Company for reimbursement but were not paid. Plaintiffs included the two expenses in their proposed pretrial order but deleted the claim for $73.11 after defendant agreed to pay the expense and, according to plaintiffs, the magistrate judge reassured them that cashing the check would not harm their case. The expense for $27.99 was included in the final pretrial order and addressed by this court in its summary judgment order in a footnote.
Defendant does not dispute that it paid plaintiffs for the prescription drug expenses. Instead, defendant argues that it "merely compromised disputed claims, but never admitted guilt." Further, defendant argues that it paid the expenses even though it had defenses to both expenses. Moreover, according to defendant, both of the prescription drug expenses could have and would have been handled short of filing a lawsuit if plaintiffs had utilized the administrative appeal process provided by the defendant's ERISA plan. In other words, the fact that defendant paid the two claims does not turn plaintiffs into "a prevailing party." Lastly, defendant argues that the prevailing party is the party that prevails on the issues that are truly contested. According to defendant, it prevailed on all contested issues in this litigation.
As explained above, the Federal Rules of Civil Procedure permit a party subject to an adverse judgment to file either a motion seeking relief from the judgment pursuant to Rule 60(b) or a motion to alter or amend the judgment pursuant to Rule 59(e). Hawkins, 64 F.3d at 546; Van Skiver, 952 F.2d at 1243. Here, as explained in footnote 2 above, because plaintiffs filed their motion to vacate judgment more than ten days after the court's judgment was entered, the motion must fall under Rule 60(b). Given the nature of the motion, the court construes plaintiffs' motion to vacate judgment as falling under the mistake grounds of Rule 60(b)(1). Unlike plaintiffs' motion to reconsider, however, here plaintiffs are not rearguing an issue previously decided by the court or contending that the court misunderstood their position. Instead, they are arguing that the Clerk of the Court erred in granting defendant its costs because plaintiffs were the prevailing party. The court concludes that it was not an obvious error of law, apparent on the record, for the clerk to have entered a judgment in favor of defendant for its costs without first addressing whether plaintiffs were prevailing parties in light of the $101.10 paid to them. The Clerk of the Court properly concluded that judgment was in favor of defendant and awarded defendant its costs.
Plaintiffs filed all three of their motions on the same day. Thus, the analysis regarding time limits and how to characterize the motions is identical.
The court is permitted to award costs under Rule 54(d)(1) and the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(g)(1). Section 1132(g)(1) states: "In any action under this title . . . by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney's fee and costs of action to either party." Although this section does not require the party seeking attorney's fees or costs to be the "prevailing party," the Tenth Circuit has ordinarily imposed such a requirement. See Arfsten v. Frontier Airlines, Inc. Retirement Plan for Pilots, 967 F.2d 438, 442 n. 3 (10th Cir. 1992); see also, Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 89 n. 14 (1982). Federal Rule of Civil Procedure 54(d)(1) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d)(1). Thus, although the district court has broad discretion to award costs, see Cantrell v. International Broth. of Elec. Workers, AFL-CIO, Local 2021, 69 F.3d 456,458 (10th Cir. 1995), the central issue in determining whether to award costs under either statute is typically determining which litigant is the "prevailing party."
Plaintiffs also argue that they are entitled to attorney's fees pursuant to § 1132(g)(1). A pro se litigant, however, may not be compensated under a federal statute for attorney's fees. See Kay v. Ehrler, 499 U.S. 432, 435 (1991) (pro se litigant not entitled to attorney's fees under 42 U.S.C. § 1988). In fact, courts have consistently held that pro se litigants are not entitled to attorney's fees under 504(g) of ERISA, 29 U.S.C. § 1132(g). See, e.g., DeBold v. Stimson, 735 F.2d 1037, 1042-43 (7th Cir. 1984); Barrett v. Bureau of Customs, 651 F.2d 1087, 1088-90 (5th Cir. 1981); Boyadjian v. Cigna Co., 973 F. Supp. 500, 503-04 (D.N.J. 1997). Thus, this court's analysis is constrained to only the issue of which party, if either, is entitled to costs.
Consistent with the statutory language in Rule 54(d)(1) and 29 U.S.C. § 1132(g)(1), after reading the court's memorandum and order granting summary judgment to defendant, the Clerk of the Court, apparently proceeding on the presumption that defendant was the prevailing party, prepared a judgment against plaintiffs for defendant's costs. Plaintiffs argue that the clerk erred in this respect because he or she failed to take into account plaintiffs' previous success in obtaining $101.10 from defendant. The court cannot agree. The court concludes that the Clerk of the Court did not err in entering a judgment in favor of defendant for its costs.
Although there is little precedent interpreting the language in Rule 54(d)(1), "the cases that have interpreted the 'prevailing party' language of Rule 54(d)(1) generally state simply that the prevailing party is the party in whose favor judgment was entered, even if that judgment does not fully vindicate the litigant's position in the case." 10 J. Moore F. Smith, Moore's Federal Practice § 54.101[3] (3d ed. 2002).
Moore's Federal Practice sets out the sound reasoning behind this bright-line test in explaining that the "judgment-winner" test for prevailing party status under Rule 54(d)(1) permits the clerk to quickly determine the costs issue by examining the judgment on record.
The Tenth Circuit has applied the reasoning of the "judgment-winner" test in at least one case. In Roberts v. Madigan, 921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1991), the Tenth Circuit held that the defendants were the prevailing parties under Rule 54(d)(1) because judgment was entered in their favor, even though they failed on one of their claims. Id. at 1058. In Roberts, the plaintiffs argued that the district court erred in awarding the defendants their entire costs because plaintiffs prevailed on one of their claims. Id. The Tenth Circuit rejected this argument in concluding "that the district court's decision to award costs to the party that prevailed on the vast majority of issues and on the issues truly contested at trial was not an abuse of discretion." Id.
In the instant action, plaintiffs do not provide a compelling reason not to follow the "judgment-winner" test. Defendant prevailed at the summary judgment stage on all of the claims remaining in the case. While defendant did pay $101.10 prior to the summary judgment stage, it points out that it had a valid defense to the claims it settled because plaintiffs did not exhaust the internal appeals procedure of defendant's ERISA plan. Moreover, defendant claims that the issue could have been resolved without litigation if plaintiffs would have followed the internal appeal procedures of defendant's ERISA plan. Plaintiffs take issue with this statement arguing that this proves that defendant was "guilty." The court does not dispute that plaintiffs were at one point entitled to be reimbursed for their prescription drug expenses under defendant's ERISA plan. Plaintiffs, however, must exhaust their administrative remedies before they are entitled to bring a claim under § 1132(a)(1)(B). See, e.g., Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460, 467 (10th Cir. 1997); Clark v. Humana Kansas City, Inc., 975 F. Supp. 1283, 1285 (D.Kan. 1997) (dismissing ERISA benefits claim for failure to exhaust the plan's internal appeal procedure). In other words, there is a difference between being entitled to reimbursement and being able to obtain a judgment in court. Thus, because defendant prevailed on all of the claims at the summary judgment stage, the Clerk of the Court did not err in concluding that defendant was the prevailing party under Rule 54(d)(1) and entering judgment in defendant's favor for its costs. Consequently, plaintiffs' motion to vacate judgment is denied.
Plaintiffs also state that they believe the magistrate judge lied to them when he told them that they would not be harmed by cashing defendant's check for $73.11. The court cannot agree with this conclusion. Plaintiffs have failed to provide evidence, either in their earlier papers or in their motion to vacate judgment, establishing that they attempted to exhaust the administrative process by appealing the denial of their claims for prescription drug expenses. The court found letters appealing other denied claims but none of the letters mentioned prescription drug expenses. Consequently, defendant paid plaintiffs the $73.11 even though it is likely that defendant had a valid defense to that claim.
III. Motion to Extend Time to Pay Sanctions
Although plaintiffs' motion is titled plaintiffs' request to extend time to pay sanctions, plaintiffs are asking the court to extend the time in which plaintiffs are required to pay defendant's costs.
Plaintiffs next ask the court to permit them to delay paying defendant's costs of $208.80 until after the court decides plaintiffs' motion for reconsideration. The motion is premature, however, because the Clerk of the Court has not taxed the costs against plaintiffs. Until this occurs, plaintiffs are not required to pay defendant's costs. Defendant submitted its bill of costs on February 26, 2002 in the amount of $208.80, but the costs have not yet been taxed by the clerk. Plaintiffs apparently believe that because defendant filed a bill of costs, plaintiffs are required to pay the bill at this time. This is not the case. After the bill of costs is filed, plaintiffs have an opportunity to either submit objections to defendant's bill of costs or wait for the clerk to tax the costs and, within five days of that date, submit a motion to retax the costs. See D. Kan. Rule 54.1 (setting out the time limits for submitting a bill of costs and for submitting a motion to retax costs); see also Fed.R.Civ.P. 54. Consequently, the court denies plaintiffs' motion to extend time to pay costs because at this time, although a judgment for costs has been awarded, the costs have not been taxed.
No time period is established in D. Kan. Rule 54.1 for filing objections to a bill of costs and the court has not located any other relevant rule limiting the time in which an objection to a bill of costs may be filed. See, e.g., Wabnum v. Snow, No. 97-4101-SAC, 2001 WL 1718043, at *1 (D.Kan. Nov. 26, 2001) (stating that the court was unable to locate a rule limiting the time period to file objections to a bill of costs and concluding that objections may be filed within a reasonable time after the bill of costs are submitted).
Section 1920 of Title 28 enumerates the expenses that a federal court may award as costs under its Rule 54(d)(1) discretionary authority. 28 U.S.C. § 1920 (1994); see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42 (1987).
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs' motion for reconsideration of memorandum and order (Doc. 40), plaintiffs' motion to vacate judgment (Doc. 41) and plaintiffs' motion to extend time to pay sanctions (Doc. 39) are denied.
IT IS SO ORDERED.