• October 25, 2013

Civ Pro by Randy WickEvery once in a while, Minnesota Litigator receives positive feedback and its readership has grown very slowly but very steadily over its five years.  Will one extremely esoteric post on civil procedure rules cause Minnesota Litigator visits to plummet?  Will this post be the law blog equivalent of Microsoft’s Windows 8 disaster?

May Cause Drowsiness


Many lay people think that civil lawsuits end with one side writing a check or otherwise paying another side and it is true that this is the way a great many of them conclude.  But another way (and a more accurate way) to think about civil litigation is that it concludes when a court has entered judgment and all appeals have either been waived or exhausted.

Entry of judgment is a very big deal.

What happens if a Court gets it wrong?  What if the judgment, by clerical error, has one too many or one too few zeroes in a monetary award?

There’s a rule for that.

What if the flaw in a judgment is not a flaw in the paperwork but, rather, it is a flawed judgment for another reason (recent evidence came to light showing the judgment was dead wrong, evidence came to light after judgment showing that the judgment was procured by fraud, and so on.)?

There’s a rule for that.

What if the decision is simply disadvantageous to you or your client and you (or your client) have a strong feeling that the judgment is unfair and erroneous?

If there were a rule for that, wouldn’t it be invoked in every single case in which someone loses (also known as “every single case”)?

The city of Duluth and the Fond du Lac Band have been in a dispute for 25 years over who gets how much money from the tribe’s casino in Duluth (previously covered here).  In a recent decision from U.S. District Court Judge Susan R. Nelson (D. Minn.), the U.S. District Court dug deep into the law of Rule 60 of the Federal Rules of Civil Procedure and rule 60(b) in particular.

To enjoy the power of Rule 60 for “relief from judgment” under the catch-all clause, Rule 60(b)(6), “a grand reservoir of equitable power,” is “exceedingly rare.”

In determining whether a matter presents “extraordinary circumstances” for purposes of Rule 60(b)(6), courts examine several factors. A clear-cut change in the law is a necessary but insufficient basis for granting relief. … . Courts also consider: (1) whether the previous, erroneous judgment of the court has yet to be executed; (2) whether there has been a lengthy delay before the filing of the Rule 60(b)(6) motion; (3) whether there is a close relationship between the proceeding that gave rise to the change in the law and the proceeding currently before the court, including whether the two proceedings ‘arose out of the same transaction’; and (4) whether the case raises concerns of comity between the state and federal courts.

(In addition to these factors, the Court also identified case-specific issues that the U.S. Court of Appeals for the 8th Circuit identified.)  It may be tempting to paraphrase all of the factors together as, “when hell freezes over.”

It should come as no surprise that courts are not particularly interested in “flipping themselves,” and perhaps, particularly in cases, like the City of Duluth v. Fond Du Lac Bank of Lake Superior Chippewa, which has been in suit in Minnesota since 1989 (25 years ago).

Photo by Ryan Malhoski

Photo by Ryan Malhoski

It is hard to get “relief from judgment” under Rule 60, but how tough is it to “alter or amend” a judgment (or get a new trial ) under Rule 59?  Have a look at the recent decision of U.S. District Court Judge Joan N. Ericksen (D. Minn.) in the Aviva Sport v Fingerhut, et al., case (previously covered here).

Rule 59(e) motions serve the limited function of correcting manifest errors of law or fact or to present newly discovered evidence. Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment.

Motions denied.  (Are you sensing a trend?)

And finally, for civil litigators’ schadenfreude and a critical point about certain deadlines, see footnote 1 in Judge Ericksen’s order.  Final judgment has jurisdictional ramifications.  Once a trial court enters judgment and a certain period of time goes by, any ruling by the a district court responding to a rule 59 motion is “a nullity.”  The court has no jurisdiction.  That ship has sailed.  And if a lawyer swears in an affidavit that his filing, late by 5 minutes after the midnight deadline, was due to the Court’s computer filing system hiccup? “[W]hen parties wait until the last minute to comply with a deadline, they are playing with fire….”

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