Motion Merits No Relief Under Rule 59 (Too Late) Or Rule 60 (Raises No New Ground)
KISWANI v. PHOENIX SECURITY AGENCY (October 16, 2009)
Ibrihim Kiswani was arrested for, and later acquitted of, an unlawful use of weapon charge. He filed an action against several police officers and the Phoenix Security Agency, alleging unlawful arrest and malicious prosecution, as well as other counts. Most of the counts were resolved prior to trial. Two counts against one individual officer were resolved at trial -- one on a motion for judgment as a matter of law and one by the jury. Judgment was entered on June 16, 2008. On June 24, Kiswani filed a renewed motion for judgment as a matter of law and a Rule 59 motion for a new trial. The magistrate judge denied the motions on August 20. On September 12, Kiswani moved for reconsideration of those motions. That motion was denied on September 24. Kiswani appeals (on September 29).
In their opinion, Judges Bauer, Rovner and Williams affirmed. First, in an order prior to argument, the Court limited the appeal only to a review of the September 12 motion for reconsideration. The August 20 order triggered the time for appeal of the merits judgment. The September 12 motion did not toll that time in that it was not filed within ten days of the judgment. On its review of Kiswani's September 12 motion for reconsideration, the Court stated that it should be considered a motion to alter or amend the judgment. That motion, under Rule 59(e), must be filed no later than 10 days after entry of judgment. Here, since the judgment was entered on June 16, the motion was not timely. The Court then turned to Rule 60(b), since an untimely Rule 59 motion automatically becomes a Rule 60(b) motion. The Court noted, however, that a Rule 60(b) motion must raise a new ground for collateral attack. Here, the motion raises the same argument as the earlier motions and is therefore inappropriate as a Rule 60(b) attack. Untimely under one rule and inappropriate under another – the Court affirmed.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select