Is it better to ask forgiveness than permission?
Problems with Local Rule 7.1—which requires prior permission for motions to reconsider—when used in Federal post-judgment motion framework.
August 14, 2014
One of the most frequently invoked local rules in the District of Minnesota, Local Rule 7.1(j), prohibits parties from filing “motions to reconsider” without obtaining advance permission from the court. A sensible safeguard of judicial economy during the normal course of pre-judgment district court litigation, this local rule can turn into a procedural booby trap when invoked to condition or restrict motions seeking post-judgment relief under Rules 59 and 60 of the Federal Rules of Civil Procedure.
Although the “motion to reconsider” is an unrecognized species in the Federal Rules’ taxonomy (not so in state court — see Rule 115.11, General Rules of Practice for the District Court), the power to reconsider is inherent to judging itself. See Fed. R. Civ. P. 54(b) (“any order or decision … may be revised at any time before the entry of judgment”). Still, the local rules require anyone seeking to file a motion to reconsider to first ask permission by letter:
“Except with the court’s prior permission, a party must not file a motion to reconsider. A party must show compelling circumstances to obtain such permission. A party who seeks permission to file a motion to reconsider must first file and serve a letter of no more than two pages requesting such permission.”
With over 500 civil cases per judgeship, the Minnesota federal court can ill afford to entertain unlimited reargument of decided matters. The local rule is an eminently reasonable method of managing the district court’s docket while allowing at least some avenue to seek reconsideration in the rare case that warrants it.
But problems arise when this local rule is applied to post-judgment motions seeking relief under Federal Rules 59 or 60. Rule 59(e), for example, authorizes litigants to file a post-judgment motion to “alter or amend” a judgment, as long as they do so within 28 days of judgment, which tolls the deadline for appeal.
But overlaying the local rule’s “prior permission” requirement on the post-judgment motion framework has the potential to create a jurisdictional minefield. What happens, for example, if a party seeking reconsideration post-judgment complies with the local rule by requesting permission to file a Rule 59(e) motion, but permission is denied after the 30-day appellate deadline has expired? Or, suppose that party timely files a Rule 59(e) motion in the first instance without seeking the court’s prior permission. Is the motion still effective to toll the time for appeal?
The 8th Circuit offered a partial answer to these questions 15 years ago in DuBose v. Kelly, 187 F.3d 999 (8th Cir. 1999). Complying with Local Rule 7.1(j), the losing plaintiff had submitted a letter request seeking leave to file a Rule 59(e) motion, which the district court denied. The plaintiff then filed a notice of appeal within 30 days of the denial of that request, but more than 30 days after the judgment. Considering its own jurisdiction, the panel held that the letter request itself was the “functional equivalent” of a Rule 59(e) motion, sufficient to toll the 30-day appeal deadline. Id. at 1002.
In dicta, the court also expressed “doubt” that the local rule’s “prior permission” requirement “was intended to apply to post-judgment motions filed within the time limit prescribed by Fed. R. Civ. P. 59(e).” Id. at 1002 n.1. That was because, the panel explained, Rule 59(e) “expressly authorizes the filing of motions to alter or amend judgment. Litigants have a right, granted by the Federal Rules of Civil Procedure, to file such motions.” Id.
The 8th Circuit later applied this dicta to effectively invalidate another local rule that regulated the timing of motions to reconsider because it curtailed the deadline prescribed by Rule 59(e). In Auto Services Co. v. KPMG, LLP, the plaintiff had filed a timely Rule 59(e) post-judgment motion, seeking reconsideration of an interlocutory ruling that the district court had entered months earlier. 537 F.3d 853, 857 (8th Cir. 2008). Citing a Nebraska local rule that required “motions to reconsider” to be filed within 10 business days of the order, the district court held that the plaintiff’s right to seek reconsideration had expired before judgment was even entered. But, suggesting that the local rule could not validly shorten Rule 59(e)’s time limit, the 8th Circuit found that the district court abused its discretion by applying the local rule. Id.
Despite the 8th Circuit’s doubts about its intended coverage, the District of Minnesota has continued to apply Rule 7.1(j)’s “prior permission” requirement to Rule 59(e) motions. Take a look at Fargas v. United States, Civ. No. 12-2165, 2014 U.S. Dist. LEXIS 196 (D. Minn. Jan. 2, 2014), Schwarz Pharma, Inc. v. Paddock Labs., Inc., Civ. No. 05-832, 2006 U.S. Dist. LEXIS 84911, at *3-5 (D. Minn. Nov. 20, 2006), and In re Nash Finch Co. Secs. Litig., 338 F. Supp. 2d 1037, 1038 (D. Minn. 2004). In one case, the court even found that a timely Rule 59(e) motion was a “nullity” that may not toll the time for taking an appeal because the plaintiff had not first asked permission to seek reconsideration. See Nash Finch, 338 F. Supp. 2d at 1038 and n.1.
For the sake of clarity, the district court would be well-advised to reconsider Local Rule 7.1(j)’s application in the post-judgment context. To be sure, the district court would be in a better position than the 8th Circuit to say whether the local rule was intended to apply to Rule 59(e) motions. But to avoid a conflict with the Federal Rules of Civil Procedure, and to comply with Rule 83’s requirement that local rules “must be consistent with” the federal rules, the District Court should amend or interpret Local Rule 7.1(j) to exempt post-judgment motions under the Federal Rules.
Understandably, no attorney wants her case to be the one that tests out a theory of appellate jurisdiction. So, until the district court clarifies the scope of Local Rule 7.1(j), attorneys seeking relief from final judgments in this district should continue to abide by it, taking the following steps when they intend to seek post-judgment relief.
1) As soon as practicable following the judgment, file the letter prescribed by Local Rule 7.1, citing 8th Circuit authority and explaining that that you have a right to move for post-judgment relief under the Federal Rules, and that you are requesting permission under the local rule in an abundance of caution. Be sure to explain the grounds and exceptional circumstances supporting your post-judgment motion, identifying the federal rule that authorizes relief in your case. Ever since Sanders v. Clemco Industries, the 8th Circuit has warned of “the dangers of filing a self-styled ‘motion for reconsideration’ that is not described by any particular rule of federal civil procedure,” as Rules 59(e) and 60(b) “serve different purposes and produce different consequences, both substantive and procedural.” 862 F.2d 161, 168 (8th Cir. 1988). Those dangers also lurk in asking for permission without specifying the motion you wish to file. At the same time, point out the Scylla (Local Rule 7.1(j)) and Charybdis (post-trial deadlines) and how you have no choice but to proceed with your motion.
2) File the post-judgment motion before the deadline expires with or without permission. Remember, even if the district court takes three weeks to review your letter request, under Federal Rule 6(b)(2), the district court does not have the power to extend the deadline for most post-judgment motions.
3) File a protective notice of appeal after filing the post-judgment motion but within 30 days of judgment. Under Federal Appellate Rule 4(a)(4)(B), that notice of appeal becomes effective once the district court rules on the post-judgment motion (but would need to be amended if you intend to seek review of the denial of the post-judgment motion).
Proceeding in this fashion — particularly filing a Rule 59(e) motion before the district court has acted on your request for permission, or even where permission has been denied — does create the risk that the district court will take exception to your failure to follow the local rule. But when the choice is between following the local rule and possibly losing your client’s right to appeal, forgiveness is better than permission.
Reprinted with permission of Minnesota Lawyer ©2014
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