Effect of Rule 60 on an appeal

[Naderfan]

What is the name of your state (only U.S. law)? 5th Circuit

I've got a rule 60 pending in the U.S. District Court simultaneously with an appeal in the 5th Circuit. Does anybody know if the appeals court will stay the breifing schedule pending the outcome of the Rule 60. I havent engaged in an appeals attorney yet and my trial attorney doesn't know.

The answer will not be found in the FRCP. I am really looking for someone who may have experience with this procedure in the 5th Circuit, which has an unusual way of dealing with post-trial, pre-appeal rule 60 motions. Thanks for any advice!

 

[Ronin]

Although you feel the 5th Circuit may have an unusual way of handling such a motion, the fact is it still has to comply with the letter of this rule. So the answer is in the FRCP, in that any actions they take have to conform within the constraints of this rule.

Without knowing the basis for filing such a motion, and there are several possibilities, no one can even guess what the trial or appeals court will do.

However, the filing of such a motion has no effect on the finality of the judgment, or suspend its operation, and it is not likely the appeals court will stay its briefing schedule based upon the filing of such a motion.

You may be hard pressed to find an appellate attorney willing to take the ball and run with it if you have already filed post judgment motions and the appeal on your own.

 

[Naderfan]

Well I don't know if this helps at all but, it was a Rule 60B (1)
The trial court made at least 6 obvious errors of laws when denying my Rule 50 motion. We didn't get the 59 filed in time, hence the rule 60. Now, I would like to get the Appeals Court to stay the breifing schedule pending the trial court decision on the Rule 60 which only seems sensible. Do you have any advice on how I might increase my chances for obtaining a stay? Also, I am not pro se. My trial attorney has filed post trial motions as well as my appeal but is not an appeals attorney. Thanks for any input you may offer.

 

[Ronin]

It appears you are suggesting that the Rule 60B(1) Motion for Relief (judicial error) is to address the alleged errors made by the judge in denying your Rule 50 Motion for Judgment as a Matter of Law.

Given the judge overruled your Rule 50 motion, and you missed the deadline for a Rule 59 Motion for New Trial or to Amend Judgment, it is almost guaranteed the judge will deny your Rule 60 motion. This motion will be construed as an attempt to dodge a mistake on your part for having missed a deadline for the Rule 59 motion.

Given your trial attorney is admittedly not experienced in appellate practice, a Rule 60 post-judgment motion might seem like a good try. While I do not have case law to back this claim up, nor am I inclined to look it up, I would be willing to bet there is some indicating that the intent of 60B(1) is not for the purpose you raise here. Much less as a means or tactic to delay an appeal.

Either way, a Rule 50 motion overruled by a trial court is appealable. The appeals court will almost surely not grant any stays based upon your Rule 60 motion.

 

[Quaere]

This motion will be construed as an attempt to dodge a mistake on your part for having missed a deadline for the Rule 59 motion.

Actually, this is where the 5th Circuit has taken the lead to encourage the use of a Rule 60 as a "better late than never" attempt to get the trial court to correct its own errors".

Given your trial attorney is admittedly not experienced in appellate practice, a Rule 60 post-judgment motion might seem like a good try. While I do not have case law to back this claim up, nor am I inclined to look it up, I would be willing to bet there is some indicating that the intent of 60B(1) is not for the purpose you raise here.

On the contrary, the 5th Circuit is good with this procedure. In fact it would have automatically construed a late filed Rule 59 as a Rule 60, and proceeded from there. What they do NOT permit, is the use of a Rule 60 to address known errors where the party neglected to notice an appeal.

The big difference between the two motions is that the Rule 59 automatically stays the appeal while the 60 does not. I have not seen any case law to indicate how the COA feels about a request to stay the briefing schedule in this situation though.

Naderfan if you end up filing a motion to request a stay, please come back and let us know what they said!

 

[Ronin]

Quaere, I was not aware of the "better late than never" application of Rule 60 when a litigant fails to avail themself of Rule 59 in a timely manner, or that a late filed 59 is automatically construed as a 60. I can't argue this point and accept it as correct. Any cites would be appreciated, as I do find it interesting.

Although it is conceivable a judge could reverse their own ruling denying a Rule 50 motion for judgment as a matter of law in response to a post jugment Rule 60 motion, it just does not appear to be very likely.

Given a Rule 60 motion expressly "does not affect the judgment's finality or suspend its operation", it would also seem unlikely an appeals court would grant a stay based upon such a pending motion.

But I too would be interested if the appeals court does grant Naderfan a stay.

 

[Quaere]

The "better late than never" was my characterization of the 5th Circuit's history of construing late Rule 59 motions as Rule 60 motions, lol.

From Benson v. St. Joseph Reginal Health Center, 575 F.3d 547 (5th Cir. July 10, 2009) (quoting Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir. 1987):

Our rule is that a Rule 60(b) motion may be used
“to rectify an obvious error of law, apparent on the record.” Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir. 1987). If such is the purpose of the motion, the Rule 60(b) motion ordinarily must be filed within the time for taking an appeal. Id. Our stated rationale has been that “a Rule 60(b)(1) motion filed within the time for appeal saves the parties and the court time and expense of a needless appeal. Id."

 

[Ronin]

Quaere, thanks for the update on this very recent case law.

I would question whether or not the 5th Circuit Court's reasoning in Benson would apply to Naderfan's case.

The issue the 5th Circuit considered was how to address an improperly filed Rule 59 motion. The court stated that certain Rule 59 procedural flaws are not fatal, and noted it would recognize an untimely filed Rule 59 motion as if it it were a Rule 60(b) motion, if the grounds asserted in support of the Rule 59(e) motion would also support Rule 60(b) relief.

Based upon this the 5th Circuit stated: We see no reason an improperly successive Rule 59(e) motion could not similarly be transformed into a Rule 60(b) motion. At least for purposes of our analysis today, we make that assumption.

So the court determined that an untimely filed successive Rule 59 motion was not fatal error. However, a complete failure to file a Rule 59 motion at all is arguably a fatal procedural error.

 

[Quaere]

However, a complete failure to file a Rule 59 motion at all is arguably a fatal procedural error.

A party is not required to file a Rule 59 motion before taking an appeal.

 

[Ronin]

You're right, as I got slightly off course.

Bottom line of the original question was whether or not the appeals court will stay an appeal pending dispostion of a Rule 60 motion. While it is possible, there does not appear much to support that the appeals court will do so.