Nelson v. Board of County Commissioners , 921 F.3d 925 ( 2019 )

FILED
United States Court of
PUBLISH Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 16, 2019
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court
TONY NELSON,
Plaintiff - Appellant,
v. No. 17-2199
CITY OF ALBUQUERQUE, a
political subdivision of the State of
New Mexico; R.T. JOHNSTON, an
Officer of the Albuquerque Police
Department, individually; D.
HUGHS, an Officer of the
Albuquerque Police Department,
individually; A. LIMON, an Officer
of the Albuquerque Police
Department, individually; S.
WEIMERSKIRCH, an Officer of the
Albuquerque Police Department,
individually,
Defendants - Appellees,
and
BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF BERNALILLO, a
political subdivision of the State of
New Mexico; JOHN AND JANE
DOES, Officers of the Albuquerque
Police Department, individually;
DERRICK WULFF, Detective of the
Albuquerque Police Department, in
his individual capacity as a state
actor of the City of Albuquerque; J.
SATHER, Sergeant of the
Albuquerque Police Department, in
his individual capacity as a state
actor of the City of Albuquerque,
Defendants.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:10-CV-00553-JB-DJS)
_________________________________
Ryan J. Villa, The Law Office of Ryan J. Villa, Albuquerque, New Mexico,
for the Plaintiff-Appellant.
David A. Roman, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico,
for the Defendants-Appellees.
_________________________________
Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal grew out of a dilemma for the district court: How was it
to resolve the tension between the desire to correct what it saw as a prior
error and constraints on the court’s power to rule on repetitive motions?
The dilemma arose from a second motion to alter or amend a civil
judgment under Federal Rule of Civil Procedure 59(e).
The defendants ultimately filed two motions based on this rule, but
they were decided by different judges. After the first judge denied the first
motion, he retired and the court reassigned the case to another judge. The
defendants then filed their second motion, reurging or elaborating on what
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they had argued in their prior motion. This time, the second judge granted
the motion. But the motion as presented was an improper Rule 59(e)
motion because it had simply rehashed arguments from the first motion.
Because the motion was improper, the district court erred in granting it.
We therefore reverse.
1. The district court denies the defendants’ first motion under Rule
59(e).
The case involved excessive force claims brought by Mr. Tony
Nelson. The case went to trial, and the jury returned a verdict for the
defendants. Mr. Nelson then moved for judgment as a matter of law under
Rule 50(b). The district court granted this motion, concluding that no
reasonable jury could find for the defendants.
The defendants responded with a motion to alter or amend the
judgment under Rule 59(e), arguing that (1) the trial evidence supported a
defense verdict and (2) the officers were entitled to qualified immunity.
The district court rejected both arguments, concluding that the defendants
were not entitled to relief under Rule 59(e). So the court entered judgment
for Mr. Nelson.
Following the entry of this judgment, the defendants moved for
judgment as a matter of law under Rule 50(b), seeking reinstatement of the
verdict. The defendants again argued that (1) the verdict was supported by
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sufficient evidence and (2) the officers were entitled to qualified
immunity.
2. The case is reassigned, and the newly assigned judge grants the
defendants’ second motion under Rule 59(e).
Before the district court issued a decision, the case was reassigned to
another judge. This judge denied the defendants’ Rule 50(b) motion based
on two conclusions:
1. Rule 50(b) did not allow the court to undo the grant of
judgment to Mr. Nelson.
2. The officers had failed to preserve their arguments for qualified
immunity.
But the judge also construed the defendants’ Rule 50(b) motion as a second
Rule 59(e) motion to alter or amend the judgment. With this construction,
the judge granted the motion, concluding both that
 the previous judge had clearly erred in granting judgment as a
matter of law to Mr. Nelson and
 the officers were entitled to qualified immunity.
Given these conclusions, the court amended the judgment to deny relief to
Mr. Nelson, who appeals the grant of the defendants’ second Rule 59(e)
motion.
3. The defendants’ postjudgment motion was properly construed as
a second Rule 59(e) motion.
The parties do not question characterization of the first motion as a
Rule 59(e) motion. The defendants later filed another motion, this time
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invoking Rule 50(b). But the court recharacterized the motion as one based
on Rule 59(e), and all parties agree with this recharacterization (as we do).
“[I]n determining whether a motion is brought under Rule 59, we
look beyond the form of the motion to the substance of the relief
requested.” Hannon v. Maschner, 981 F.2d 1142, 1144 n.2 (10th Cir.
1992). Despite the label, a motion constitutes a Rule 59(e) motion if it
“requests a substantive change in the district court’s judgment or otherwise
questions its substantive correctness.” Yost v. Stout, 607 F.3d 1239, 1243
(10th Cir. 2010).
Although the defendants labeled their motion as one under Rule
50(b), the court correctly construed the motion as one based on Rule 59(e).
In the motion, the defendants urged the court to vacate its earlier grant of
judgment to Mr. Nelson. As the court recognized, this was not a true
request for Rule 50(b) relief. Instead, the defendants were questioning the
correctness of the order granting judgment to Mr. Nelson. This was a
classic argument to alter or amend the judgment. See Yost, 607 F.3d at
1243. The motion thus constituted a second motion under Rule 59(e).
4. The court erred in granting the defendants’ second Rule 59(e)
motion.
We review rulings on Rule 59(e) motions for an abuse of discretion.
Elm Ridge Expl. Co. v. Engle, 721 F.3d 1199, 1216 (10th Cir. 2013). A
court abuses its discretion when basing its decision on an erroneous legal
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conclusion. Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997,
1005 (10th Cir. 2017). Here the court abused its discretion by committing a
legal error when granting the defendants’ second Rule 59(e) motion. In this
motion, the defendants merely reurged arguments that had already been
presented in the first Rule 59(e) motion.
Rule 59(e) motions may be granted when “the court has
misapprehended the facts, a party’s position, or the controlling law.”
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
But once the district court enters judgment, the public gains a strong
interest in protecting the finality of judgments. See Sanchez-Llamas v.
Oregon, 548 U.S. 331, 356 (2006) (discussing the “important interest in
the finality of judgments”). This interest in finality becomes even stronger
when a district court has previously denied relief under Rule 59(e). See In
re Strangel, 68 F.3d 857, 859 (5th Cir. 1995) (“[T]he interest of finality
requires that the parties generally get only one bite at the Rule 59(e) apple
for the purpose of tolling the time for bringing an appeal.”).
Given the strength of this interest in finality, we have restricted
district courts’ discretion when ruling on motions based on Rule 59(e). For
example, we held in Servants of the Paraclete that Rule 59(e) motions are
“not appropriate to revisit issues already addressed or advance arguments
that could have been raised in prior briefing.” 204 F.3d at 1012. The
United States Supreme Court also stated in Exxon Shipping Co. v. Baker
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that “Rule 59(e) permits a court to alter or amend a judgment, but it ‘may
not be used to relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of judgment.’” 554
U.S. 471, 485 n.5 (2008) (quoting 11 C. Wright & A. Miller, Federal
Practice and Procedure § 2810.1, pp. 127–28 (2d ed. 1995)). 1
Given this guidance from Servants of the Paraclete and Exxon
Shipping, we consider the defendants’ two arguments in their second Rule
59(e) motion:
1. Mr. Nelson was not entitled to judgment under Rule 50(b).
2. The officers were entitled to qualified immunity.
These were not new arguments: The first judge had rejected the same
arguments when the defendants presented their first Rule 59(e) motion. 2
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We have allowed use of Rule 59(e) to challenge an earlier order
confirming an appraisal award. Hayes Family Tr. v. State Farm Fire &
Cas. Co., 845 F.3d 997, 1005 (10th Cir. 2017). In doing so, we stated:
“Certainly a motion under Rule 59(e) allows a party to reargue previously
articulated positions to correct clear legal error.” Hayes Family Tr., 845
F.3d at 1005. But there we were not addressing a second Rule 59(e)
motion. Here the defendants didn’t challenge a ruling on a motion filed
under some other procedural rule; the defendants instead rehashed what
they had argued in their prior Rule 59(e) motion.
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The reassignment of judges does not affect the district court’s power
to act because the successor judge can reconsider prior rulings only if the
previous judge could have done so. See U.S. Gypsum Co. v. Schiavo Bros.,
668 F.2d 172, 176 (3d Cir. 1981) (stating that a successor judge can
reconsider legal issues “to the same extent that his or her predecessor
could have”); Abshire v. Seacoast Prods., Inc., 668 F.2d 832, 837–38 (5th
Cir. 1982) (concluding that a “successor judge has the same discretion as
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Because parties cannot invoke Rule 59(e) to reurge or elaborate on
arguments already decided in earlier Rule 59(e) proceedings, the
defendants’ second Rule 59(e) motion did not supply a proper ground for
relief.
The district court acknowledged that Servants of the Paraclete might
prohibit a party from filing a second Rule 59(e) motion that merely
rehashed arguments from a prior Rule 59(e) motion. But the court
concluded that the opinion did not affect a district court’s ability to grant
Rule 59(e) relief. We disagree. In our view, Servants of the Paraclete
prevented the district court from granting an improper motion under Rule
59(e). Thus, the district court abused its discretion by committing an error
of law.
5. Our disposition leaves three issues unanswered.
In concluding that the district court erred, we leave three issues
unresolved: (1) whether the district court could have granted relief by
ruling sua sponte, (2) whether relief sought in a repetitive Rule 59(e)
the first judge to reconsider” an earlier order); Exxon Corp. v. United
States, 931 F.2d 874, 878 (Fed. Cir. 1991) (“A successor judge steps into
the shoes of his or her predecessor, and is thus bound by the same rulings
and given the same freedom, as the first judge.”).
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motion might otherwise be granted through Rule 60, and (3) whether Rule
59(e) can be used to challenge a judgment awarded under Rule 50.
A. Whether the district court can act sua sponte to grant relief
under Rule 59(e)
Rather than grant relief sua sponte, the district court ruled by
granting the defendants’ motion. We thus need not consider whether a
district court can grant Rule 59(e) relief by acting sua sponte. And even if
we assume that a court could act sua sponte under Rule 59(e), we need not
consider whether sua sponte relief would be appropriate in cases like ours,
where Rule 59(e) had already been invoked in an earlier motion. See
United States v. Williams, 790 F.3d 1059, 1070 (10th Cir. 2015)
(recognizing that even though a district court could vacate a conviction sua
sponte based on a fraud on the court, the statutory restrictions on a second
or successive motion to vacate the sentence applied because the district
court had granted the defendant’s motion rather than act sua sponte).
Only one circuit has addressed a district court’s power to act sua
sponte by granting relief under Rule 59(e): the Eleventh Circuit. Burnam v.
Amoco Container Co., 738 F.2d 1230, 1232 (11th Cir. 1984) (per curiam).
That circuit allows the district court to act sua sponte within the period for
filing a motion to alter or amend the judgment. Id. Our court has not
weighed in on the court’s power to act sua sponte under Rule 59(e). Cf.
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Marshall v. Shalala, 5 F.3d 453, 454 (10th Cir. 1993) (declining to decide
whether to allow the district court to act sua sponte under Rule 59(e)).
Even under the Eleventh Circuit’s approach, however, the district
court did not act within the deadline for a motion to alter or amend the
judgment. To act sua sponte, the court had to rule within 28 days of the
judgment for Mr. Nelson. See Fed. R. Civ. P. 59(e) (2012).
Here the court did not rule within this 28-day period. The judgment
for Mr. Nelson was entered in 2012. In 2013, the district court issued an
order summarily granting in part and denying in part the defendants’
motion under Rule 50(b) for judgment as a matter of law. In the order, the
district court stated that it would later issue an explanatory opinion. The
district court did not issue its opinion until 2017, long after the 28-day
period had ended. In that opinion, the district court stated for the first time
that it was granting relief under Rule 59(e) rather than Rule 50(b). So even
under the Eleventh Circuit’s approach, the district court’s ruling could not
be upheld as a proper exercise of authority to act sua sponte.
Given the nature and timing of the ruling on the second Rule 59(e)
motion, we need not decide whether the court could have granted relief to
the defendants by acting sua sponte.
B. Whether relief might be permissible under Rule 60
We also need not decide whether relief sought in a repetitive Rule
59(e) motion might be granted through Rule 60. For instance, if a litigant
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sought to correct a clerical error or remedy a fraud on the court in a
repetitive Rule 59(e) motion, a court might correct the error under Rule
60(a) or Rule 60(d). See Fed. R. Civ. P. 60(a) (clerical errors may be
corrected sua sponte before an appeal is filed); United States v. Buck, 281
F.3d 1336, 1341–42 (10th Cir. 2002) (permitting relief to remedy a fraud
on the court). But in this appeal, the defendants have not raised the
possibility of relief under Rule 60. So we need not address whether a court
can use Rule 60 to grant relief after the filing of a repetitive motion based
on Rule 59(e).
C. Whether Rule 59(e) can be used to challenge a judgment
that had been based on Rule 50
Nor do we consider whether it is appropriate to use Rule 59(e) to
challenge a judgment awarded under Rule 50. The advisory committee
notes suggest that Rule 59(e) cannot be used to challenge a judgment
awarded under Rule 50. See Fed. R. Civ. P. 59(e) advisory committee’s
notes to 1946 amendment (stating that Rule 59(e) “deals only with
alteration or amendment of the original judgment in a case and does not
relate to a judgment upon motion as provided in Rule 50(b)”). But Mr.
Nelson did not adequately argue that the court had erred in allowing use of
Rule 59(e) to modify a judgment that had been based on Rule 50(b). In his
opening brief, Mr. Nelson merely provided the text of the advisory note
and stated: “For this reason it may have been error to grant Defendants’
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Rule 59(e) motion.” Appellant’s Opening Br. at 29. Mr. Nelson waived this
argument by failing to adequately develop it. See Fuerschbach v. Sw.
Airlines Co., 439 F.3d 1197, 1209–10 (10th Cir. 2006).
6. Conclusion
The defendants filed a second Rule 59(e) motion that merely reurged
arguments already made in a previous Rule 59(e) motion. The second
motion was improper, and the district court erred by granting the improper
motion. We thus reverse the grant of the defendants’ second Rule 59(e)
motion and remand with instructions to vacate the judgment and reinstate
the prior judgment for Mr. Nelson.
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