Opinion
Case No. 01-2270-JWL
December 3, 2002.
MEMORANDUM ORDER
Currently before the court is defendant Carolyn Espy's motion to reconsider the court's October 22, 2002, Memorandum and Order, granting Kansas City Cable Partners' motion for summary judgment as uncontested (Doc. 57). After reviewing defendant Espy's motion and considering Ms. Espy's testimony at a recent hearing regarding this issue, the court is convinced that Ms. Espy did not receive adequate notice of Kansas City Cable Partners' motion for summary judgment. Accordingly, the court grants her motion to reconsider. She has until December 23, 2002, to file a response to Kansas City Cable Partners' motion for summary judgment.
Although Ms. Espy's filing was an untitled pleading in letter form, not labeled as a motion to reconsider, given her pro se status the court construed the pleading as a motion to reconsider.
• BACKGROUND
After Ms. Espy did not respond to Kansas City Cable Partners' motion for summary judgment, this court issued a show cause order, dated August 29, 2002, asking Ms. Espy to show cause why she failed to respond to the motion and directing her to respond to the motion on or before September 12, 2002. When Ms. Espy did not respond, the court presumed the motion was uncontested and, therefore, granted the motion for summary judgment as to liability and set a date for a hearing regarding damages.
Ms. Espy sent a pleading to the court, dated November 12, 2002, indicating that she did wish to contest Kansas City Cable Partners' motion for summary judgment. Thus, the court's deputy clerk issued a minute order scheduling a hearing to consider Ms. Espy's motion. At the hearing, Ms. Espy stated, under penalty of perjury, that she had not received the court's show cause order.
Ms. Espy's husband, Steven McCarty, also testified that Ms. Espy had not received notice of defendant's summary judgment motion or the court's show cause order.
• ANALYSIS
Given the circumstances, then, the court will construe Ms. Espy's letter as a motion to reconsider the court's order granting Kansas City Cable Partners' motion for summary judgment. District of Kansas Rule 7.3 provides:
A party may file a motion asking a judge . . . to reconsider an order . . . made by that judge. . . .
(a) Dispositive Orders and Judgments. Motions seeking reconsideration of dispositive orders or judgments may be filed pursuant to Fed.R.Civ.P. 59(e) or 60.
District of Kansas Rule 7.3.
Whether a motion will be considered under Rule 59(e) or under Rule 60(b) depends on the time that motion is filed. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). A Rule 59(e) motion must be filed within ten days of judgment; motions filed after that time must be considered under Rule 60(b). Id. (citations omitted). Ms. Espy filed her motion more than ten days after this court's order granting summary judgment, and this court has no jurisdiction to extend the time period dictated by Rule 59(e). Fed.R.Civ.P. 6(b). Her motion, therefore, must be considered under Rule 60(b).
The court's summary judgment order is file-stamped October 22, 2002. Ms. Espy's letter is file-stamped November 12, 2002.
Given Ms. Espy's pro se status, the court will construe her pleading as a motion made under either Rule 60(b)(1) ("mistake, inadvertence, surprise, or excusable neglect") or Rule 60(b)(6) ("any other reason justifying relief"). The court believes the circumstances justify relief under either rule. Rule 60(b)(6) has been described by the Tenth Circuit as a "grand reservoir of equitable power to do justice in a particular case." Pierce v. Cook Co., 518 F.2d 720, 722 (10th Cir. 1975). Under the circumstances, the court believes it would be unjust not to give Ms. Espy an opportunity to respond to Kansas City Cable Partners' motion. Accordingly, the court will grant Ms. Espy's motion to reconsider under Rules 60(b)(1) and 60(b)(6). The court sets aside its October 22, 2002, Memorandum and Order, granting Kansas City Cable Partners' motion for summary judgment as uncontested. The court deems Kansas City Cable Partners' motion re-filed as of December 2, 2002. Ms. Espy will have until December 23, 2002, to respond to the motion and plaintiff may file a reply within the time limits prescribed by local rule.
Rule 60(b) provides:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative 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.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Espy's motion to reconsider the court's October 22, 2002, Memorandum and Order, (Doc. 57) is granted. The court sets aside its October 22, 2002, Memorandum and Order, granting Kansas City Cable Partners' motion for summary judgment. Kansas City Cable Partners' motion for summary judgment is deemed re-filed, and Ms. Espy will have until December 23, 2002, to respond to the motion.