Wollan v. DOI ( 1999 )

  •                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                                                                JUN 16 1999
                          FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
    v.                                        No. 98-1219
                                           (D.C. No. 97-K-36)
    UNITED STATES DEPARTMENT                   (D. Colo.)
    Regional Forester, Rocky Mountain
    Region, R2, Denver; KEYSTONE
    a Colorado corporation; RALSTON
    RESORTS, INC., a Missouri
    corporation; INTRAWEST, INC.,
    a Delaware corporation;
    a Colorado Limited Liability
    INC., a Colorado corporation;
                                ORDER AND JUDGMENT           *
    Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
           After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
           Plaintiff James A. Wollan filed this action in January 1997, alleging that
    defendants United States Department of Interior, Bureau of Land Management,
    United States Department of Agriculture, United States Forest Service, Elizabeth
    Estill, Keystone Resorts Management, Inc., Ralston Resorts, Intrawest Inc.,
    Keystone/Intrawest, LLC, Vail Summit Resorts, Inc., and ten John and Jane Does,
    engaged in an unlawful taking of land belonging to him in a land exchange
    between Vail and the United States Forest Service. On March 4, 1998, the district
    court granted summary judgment in favor of the Keystone and Vail defendants,
          This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    and on March 13, 1998, it amended the judgment to include the remaining
    government defendants     nunc pro tunc March 4, 1998.
          On March 6, 1998, the district court granted plaintiff’s motion for an
    extension of time to April 6, 1998, to file his request for reconsideration.
    On April 6, 1998, plaintiff, acting pro se, filed what purported to be a motion for
    reconsideration of the district court’s judgments granting summary judgment.
    On April 7, 1998, the district court denied this motion on the grounds that
    plaintiff had not raised any new arguments or offered new evidence which would
    justify reconsideration. On April 18, 1998, plaintiff filed a document titled
    “Motion Confirming 60 Days to Make Notice of Appeal,” seeking           assurance from
    the district court that he had sixty days from April 7, 1998, the date the court
    denied his motion for reconsideration, to file his notice of appeal. The court
    struck the motion as an inappropriate attempt to seek legal advice from the court,
    and referred plaintiff to Fed. R. App. P. 4.
          Plaintiff did not file his notice of appeal until June 8, 1998.   See Fed. R.
    App. P. 4(a)(1)(B) (when United States is a party, notice of appeal must be filed
    within sixty days after entry of order appealed from). Therefore, we initially
    consider whether this court has jurisdiction to consider the district court’s orders
    on appeal. See Smith v. Barry , 
    502 U.S. 244
    , 245 (1992) (holding that federal
    appellate jurisdiction is conditioned on filing a timely notice of appeal).
          The federal rules do not recognize a motion to reconsider. The party
    seeking reconsideration must file a motion to alter or amend judgment under
    Fed. R. Civ. P. 59(e), or a motion seeking relief from judgment under
    Fed. R. Civ. P. 60(b). See Van Skiver v. United States, 
    952 F.2d 1241
    , 1243
    (10th Cir. 1991). A motion to alter or amend judgment under Rule 59(e) must be
    filed within ten days of the entry of judgment, and if timely filed, tolls the time
    for filing the notice of appeal under Fed. R. App. P. 4(a)(4). A motion filed after
    the ten-day period is construed as a motion seeking relief from judgment under
    Rule 60(b), see Van Skiver, 952 F.2d at 1243, and the time for filing a notice of
    appeal is not tolled, see Fed. R. App. P. 4(a)(4)(A)(vi).
          Fed. R. Civ. P. 6(b) provides that a court may, within its discretion, order
    an enlargement of time in which to file a motion, but it lacks the authority to
    grant an extension of time to file a Rule 59(e) motion. See Collard v. United
    10 F.3d 718
    , 719 (10th Cir. 1993) (holding that Rule 6(b) prohibits a
    district court from extending the time within which to file a Rule 59(e) motion).
    Plaintiff asserts that he relied to his detriment on the district court’s grant of his
    motion for an extension of time to file his motion for reconsideration. He
    contends that because the district court granted an extension of time, he has
    shown “unique circumstances” which should excuse his untimely notice of appeal.
    See Thompson v. INS, 
    375 U.S. 384
    , 386-87 (1964) (if plaintiff did an act, which
    if properly done, would toll the time for filing an appeal, unique circumstances
    exist, and appeal should be heard on the merits).
          In Osterneck v. Ernst & Whinney, 
    489 U.S. 169
    , 179 (1989), the Court
    limited Thompson to apply “only where a party has performed an act which, if
    properly done, would postpone the deadline for filing his appeal and has received
    specific assurance by a judicial officer that this act has been properly done.”
    Here, the fact that the district court granted plaintiff’s motion for extension of
    time is not the “specific assurance” required by Osterneck. See, e.g., Certain
    Underwriters at Lloyds of London v. Evans, 
    896 F.2d 1255
    , 1258 (10th Cir. 1990)
    (holding that where the district court improperly granted a motion for an
    extension of time to file an appeal, no unique circumstances existed). Therefore,
    under Rule 6(b), the district court had no authority to extend the time for filing
    a Rule 59(e) motion, and plaintiff’s reliance on the extension of time was
          Fed. R. App. P. 3(c) requires a notice of appeal to specify the party making
    the appeal, the judgment or order from which the party appeals, and the court to
    which the appeal is taken. Therefore, next we consider whether we can construe
    plaintiff’s “Motion Confirming 60 Days to Make Notice of Appeal” as the
    “functional equivalent” of a notice of appeal. See Grimsley v. MacKay, 
    93 F.3d 676
    , 678 (10th Cir. 1996) (reiterating holding that “documents other than the
    notice of appeal filed within the appropriate period, such as a docketing
    statement, may cure defects in the notice of appeal”).
          Plaintiff’s “Motion Confirming 60 Days to Make Notice of Appeal”
    requests that the district court confirm that he has sixty days from the date the
    court denied his motion to reconsider to file his notice of appeal. Even construing
    the requirements of Rule 3(c) liberally, see Hatfield v. Board of County Comm’rs,
    52 F.3d 858
    , 862 n.3 (10th Cir. 1995), plaintiff’s motion does not contain the
    information required by Rule 3(c). “Rule 3’s dictates are jurisdictional in nature,
    and their satisfaction is a prerequisite to appellate review.” Smith, 502 U.S. at
    248. Therefore, we determine that plaintiff’s motion does not comport either
    technically or functionally with the requirements for a notice of appeal, and this
    court lacks jurisdiction to review the correctness of the district court’s summary
    judgment orders.
          Plaintiff’s June 8, 1998 notice of appeal, however, would still be timely as
    to the district court’s denial of plaintiff’s motion for reconsideration (construed
    as a Rule 60(b) motion). 1 See Van Skiver, 952 F.2d at 1243 (an appeal from the
    denial of a Rule 60(b) motion raises for review only the district court’s denial and
           Plaintiff’s sixtieth day fell on Saturday, June 6, 1998, therefore his filing
    on Monday, June 8, 1998, was timely as to the April 7, 1998 denial of his motion
    for reconsideration. See Fed. R. Civ. P. 6(a) (excluding Saturday and Sunday
    from calculation of time periods under rules).
    not the underlying judgment). Rule 60(b) relief is discretionary and is warranted
    only in exceptional circumstances. See Cashner v. Freedom Stores, Inc., 
    98 F.3d 572
    , 576 (10th Cir. 1996).
          Plaintiff continues to argue his alleged legal right to the land in question.
    At no point in his many pleadings does plaintiff explain how his motion to
    reconsider satisfied any of Rule 60(b)’s six grounds for relief. 2 Therefore, in the
    absence of any argument supporting the grant of relief under Rule 60(b), we
    conclude that the district court did not abuse its substantial discretion in denying
    plaintiff’s motion to reconsider. See Hernandez v. Starbuck, 
    69 F.3d 1089
    , 1093
    (10th Cir. 1995) (holding that court is “not required to manufacture a party’s
    argument on appeal when it has failed in its burden to draw our attention to the
    error below”).
          Rule 60(b) provides in part:
          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.
          Plaintiff’s appeal of the district court’s orders of March 4, 1998, and March
    13, 1998, is DISMISSED for lack of jurisdiction. To the extent that plaintiff’s
    appeal challenges the district court’s denial of his Rule 60(b) motion, we
    AFFIRM the judgment of the district court. Plaintiff’s motion to supplement the
    record on appeal is denied as moot. The mandate shall issue forthwith.
                                                        Entered for the Court
                                                        Mary Beck Briscoe
                                                        Circuit Judge