Opinion
Case No. 2:02-CV-324 TS.
June 3, 2004
ORDER DENYING PLAINTIFF'S MOTION TO RECONSIDER
This matter is before the court on Defendant's Motion to Reconsider the court's March 18, 2004, Order Denying Defendant's Motion to Vacate Judgment and to Dismiss and Denying Plaintiff's Motion for Leave to File First Amended Complaint. (March 18, 2004, Order). The Motion to Reconsider was filed on May 5, 2004, 47 days after the March 18, 2004, Order was filed.
The Federal Rules of Civil Procedure do not recognize a "motion to reconsider." Instead, the rules allow a litigant subject to an adverse judgment to file either a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a motion seeking relief from the judgment pursuant to Fed.R.Civ.P. 60(b). These two rules are distinct; they serve different purposes and produce different consequences. Which rule applies to a motion depends essentially on the time a motion is served. If a motion is served within ten days of the rendition of judgment, the motion ordinarily will fall under Rule 59(e). See Dalton v. First Interstate Bank of Denver, 863 F.2d 702, 703-04 (10th Cir. 1988) ("post-judgment motions filed within ten days of the final judgment should, where possible, be construed as Rule 59(e) motions"). If the motion is served after that time it falls under Rule 60(b). See Wilson v. Al McCord, Inc., 858 F.2d 1469, 1478 (10th Cir. 1988) ("Because more than ten days had elapsed before the filing of the motion to reconsider, we construe it as a motion pursuant to Fed.R.Civ.P. 60(b)(6). . . ."). In this case, plaintiffs' motion to reconsider was not served within ten days of the district court's judgment. Therefore, the motion must be construed as one pursuant to Rule 60(b).Van Sciver v. U.S., 952 F.2d 1241, 1243 (10th Cir. 1991).
In this case, as in Van Sciver, the Motion to Reconsider is construed as a Motion pursuant to Rule 60(b) because it was filed more than ten days following entry of the order. Rule 60(b) "relief is extraordinary and may only be granted in exceptional circumstances." Amoco Oil Co. v. U.S. EPA, 231 F.3d 694, 697 (10th Cir. 2000) (quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990)).
Defendant contends that this court lacks subject matter jurisdiction over this action and argues that he may raise that issue at any time. In contrast, in Defendant's earlier Motion to Vacate Default Judgment and to Dismiss, he phrased the issue as a lack of "amount in controversy," because "when [Plaintiff] attempts to domesticate a foreign judgment, there is no amount in controversy."
For the reasons stated in the March 18, 2004, Order, a statute providing for domestication of a foreign state judgment is not necessary to establish diversity jurisdiction. Instead, there only needs to be an amount in controversy in excess of the jurisdictional threshold of more than $75,000. The fact that there is already a state court judgment would have been a basis for affirmative defenses that might have, if asserted, shown there was no longer a sufficient amount in controversy. However, as noted in the March 18, 2004, Order, any such affirmative defenses in this case were waived because they were not timely asserted. Id. at 4. Accordingly, Defendant has not shown that this court lacked subject matter jurisdiction and has not shown exceptional circumstances warranting relief under any subsection of Rule 60(b). It is therefore
ORDERED that Defendant's Motion to Reconsider is DENIED.