952 F.2d 1241 (10th Cir. 1991), 90-3364, Van Skiver v. United States

Docket Nº:90-3364.
Citation:952 F.2d 1241
Party Name:21 Fed.R.Serv.3d 841 Raymond J. VAN SKIVER; Alma L. Van Skiver, Plaintiffs-Appellants, v. UNITED STATES of America; and John Does, Defendants-Appellees.
Case Date:December 30, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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952 F.2d 1241 (10th Cir. 1991)

21 Fed.R.Serv.3d 841

Raymond J. VAN SKIVER; Alma L. Van Skiver, Plaintiffs-Appellants,


UNITED STATES of America; and John Does, Defendants-Appellees.

No. 90-3364.

United States Court of Appeals, Tenth Circuit

December 30, 1991

Rehearing Denied Feb. 21, 1992.

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Raymond J. Van Skiver, pro se.

Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, William S. Estabrook, and Annette M. Wietecha, Tax Div., Dept. of Justice, Washington, D.C., for defendants-appellees.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiffs-appellants Raymond and Alma Van Skiver appeal from a district court order, reported as Van Skiver v. United States, 751 F.Supp. 1522 (D.Kan.1990), denying their motion to reconsider the district court's judgment entered in favor of defendants the United States and John Does. 1 Because we find no abuse of discretion, we affirm.

Plaintiffs, acting pro se, brought this action against the United States and John Does alleging three causes of action: wrongful levy, unauthorized disclosure of tax return information, and quiet title to real and personal property seized by the Internal Revenue Service (IRS) in partial satisfaction of plaintiffs' tax liability. The United States filed a motion to dismiss alleging lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. This motion was granted in part and denied in part by the district court. Subsequently, the district court, on July 16, 1990, entered a final order granting summary judgment in favor of the United States as to the claims that remained against it and dismissing the entire complaint as to the John Does since they had not been identified and the time for effecting service under Fed.R.Civ.P. 4(j) had expired.

On July 31, 1990, plaintiffs filed their motion for reconsideration. See II R. tab 33. Their motion focused exclusively on plaintiffs' claim to quiet title. Plaintiffs' complaint sought to quiet title based on numerous procedural irregularities in the assessment of taxes and in the seizure and sale of property. Specifically, plaintiffs alleged in their complaint that the IRS (1) failed to assess their tax liability in accordance with the procedures required by 26 U.S.C. § 6203; (2) failed to serve the notices and demands required by 26 U.S.C. § 6303; and (3) failed to comply with the service requirements of 26 U.S.C. § 6335(a) and (b) for notices of sale and seizure. Plaintiffs' motion for reconsideration was directed at the district court's rejection of the alleged procedural lapses under 26 U.S.C. §§ 6203 and 6335. The district court found the motion was not appropriate under the circumstances but also denied it

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on the merits on November 28, 1990. Plaintiffs filed their notice of appeal on December 7, 1990.

This case illustrates the dangers of filing a self-styled "motion to reconsider." The Federal Rules of Civil Procedure do not recognize a "motion to reconsider." Instead, the rules allow a litigant subject to an adverse judgment to file either a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a motion seeking relief from the judgment pursuant to Fed.R.Civ.P. 60(b). These two rules are distinct; they serve different purposes and produce different consequences. Which rule applies to a motion depends essentially on the time a motion is served. If a motion is served within ten days of the rendition of judgment, the motion ordinarily will fall under Rule 59(e). See Dalton v. First Interstate Bank of Denver, 863 F.2d 702, 703-04 (10th Cir.1988) ("post-judgment motions filed within ten days of the final judgment should, where possible, be construed as Rule 59(e) motions"). If the motion is served after that time it falls under Rule 60(b). See Wilson v. Al McCord, Inc., 858 F.2d 1469, 1478 (10th Cir.1988) ("Because more than ten days had elapsed before the filing of the motion to reconsider, we construe it as a motion pursuant to Fed.R.Civ.P. 60(b)(6)....") (citation omitted).

In this case, plaintiffs' motion to reconsider was not served within ten days of the district court's judgment. 2 Therefore, the motion must be construed as one pursuant to Rule 60(b). Plaintiffs' appeal from the denial of the motion raises for review only the district court's order of denial and not the underlying judgment itself. United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir.1988); V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 (10th Cir.1979). 3

The district court did not abuse its discretion in denying the plaintiffs' motion to reconsider. The district court noted that plaintiffs' brief in support of their motion "basically revisits, albeit in somewhat different forms, the same issues already addressed and dismissed by the court." 751 F.Supp. at 1523. The court properly recognized that revisiting the issues already addressed "is not the purpose of a motion to reconsider," and "advanc[ing] new arguments or supporting facts which were otherwise available for presentation when the original summary judgment motion was briefed" is likewise inappropriate. Id. On this basis alone we affirm the district court's denial of the motion to reconsider.

This court need not, and does not, address the merits of the motion to reconsider because the plaintiffs have failed to demonstrate any basis for Rule 60(b) relief. See United States v. 329.73 Acres of Land, 695 F.2d 922, 925 (5th Cir.1983). Relief under Rule 60(b) is discretionary and is warranted only in exceptional circumstances. Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d...

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