Opinion
No. 02-4075-SAC
March 18, 2004
MEMORANDUM AND ORDER
This case comes before the court on plaintiff's motion for relief from judgment or order pursuant to Fed.R.Civ.Pro. 60(b)(1) or b(6). By this motion, plaintiff seeks permission to "file objections to the report and recommendations of the Magistrate dated February 2, 2004, as a prelude to taking an appeal to the Tenth Circuit." Dk. 15.
In support of the motion, plaintiff states that he received an electronic notice of the filing of the magistrate's report and recommendation, but did not read the report and recommendation because he was unable to open that electronic document using the password and login he had been given approximately eleven months before. Plaintiff's counsel also admits having received electronic notice that this court filed a related order on March 9, 2004. When he could not read the court's order electronically, plaintiff's counsel called the clerk, explained the problem, and received on March 10, 2004, a paper copy of the magistrate's report and recommendation and the court's order, which accepted the magistrate's report and recommendation as the ruling of this court.
Rule 60 of the Federal Rules of Civil Procedure has been called the "grand reservoir of equitable power to do justice in a particular case." F.D.I.C. v. United Pacific Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998) (quotation omitted). Accordingly, the district court retains substantial discretion "to grant relief as justice requires under Rule 60(b), yet such relief is extraordinary and may only be granted in exceptional circumstances." Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). "A litigant shows exceptional circumstances by satisfying one or more of Rule 60(b)'s six grounds." Van Skiver v. U.S., 952 F.2d 1241, 1243-44 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). The two grounds alleged in this case are "mistake, inadvertence, surprise, or excusable neglect," and "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.Pro. 60(b)(1),(b)(6).
The ten-day limit on filing objections to the magistrate's report arises not by virtue of any language in that report, but by virtue of a federal statute. After a magistrate files his proposed findings and recommendations and a copy is sent to all parties:
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. 28 U.S.C. § 636(b)(1).
Counsel correctly notes that the magistrate's report and recommendation states that copies of that report "should be mailed to counsel of record for the parties." (Dk. 12). For those counsel who are participants in the court's electronic filing system (CM-ECF), as is plaintiff's counsel, the mailing requirement is fulfilled by electronic notice, which plaintiff's counsel admits having received. The court finds no basis for relief on these facts.
IT IS THEREFORE ORDERED that plaintiff's motion for relief from judgment or order is denied.