United States District Court, D. Montana, Billings Division
P. WATTERS UNITED STATES DISTRICT JUDGE.
Alan Engelke has moved under Federal Rule of Civil Procedure
60(a) for this Court to Clarify its Opinion and Order issued
June 27, 2018. (Doc. 81). Specifically, Engelke notes that
the Court made findings on Mid-Continent's negligence
under Montana's Dig Law, but did not specifically state
that Mid-Continent was negligent for violating Montana Code
Annotated § 69-4-502(2)(a). (Doc. 82 at 5).
Mid-Continent objects that Rule 60(a) cannot provide the
relief Engelke seeks and thus his motion should be denied.
Engelke's motion is properly construed as a Rule 59(e)
motion to alter or amend judgment because it asks the Court
to reconsider aspects of its decision.
opposes Engelke's motion and argues that the Court may
only clarify rulings in its original judgment under Federal
Rule of Civil Procedure 60(a), whereas Engelke is asking the
Court to add a ruling; that is, whether Mid-Continent's
subrogors were negligent under § 69-4-502(2)(a). (Doc.
84 at 4). Mid-Continent points out that Rule 60(a) only
allows "for clarification and explanation consistent
with the intent of the original judgment...," it does
not allow a correction that reflects a new and subsequent
intent of the court. (Id.). The Court agrees.
However, the analysis does not end there.
59(e) provides a mechanism by which a trial judge may alter,
amend, or vacate a judgment. See Foman v. Davis, 371
U.S. 178 (1962). Under Rule 59(e), a party may move to have
the court amend its judgment within twenty-eight days after
entry of the judgment. "Since specific grounds for a
motion to amend or alter are not listed in the rule, the
district court enjoys considerable discretion in granting or
denying the motion." McDowell v. Calderon, 197
F.3d 1253, 1255 n. 1 (9th Cir.1999) (en banc) (per curiam)
(internal quotation marks omitted). "A Rule 59(e) motion
is discretionary and need not be granted unless the district
court finds that there is an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice." Id. (citation and quotation marks
omitted). A litigant may not use Rule 59(e) "to
relitigate old matters, or to raise arguments ... that could
have been raised prior to the entry of judgment."
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5
(2008). But, relief is warranted "when there were facts
or legal issues properly presented but overlooked by the
court in its decision." Berge v. United States,
59(e) encompasses a wide variety of post-judgment motions and
prayers for relief. 11 Charles Alan Wright, Arthur R. Miller,
and Mary Kay Kane, Federal Practice and Procedure §
2810.1 at 152 (2012). This is because a Rule 59(e)
motion's substance, rather than its form, controls.
Miller v. Transamerican Press, Inc., 709 F.2d 524,
527 (9th Cir. 1983) (Rule 59's language 'alter or
amend' means a substantive as opposed to a merely
clerical change of mind by the court) (internal brackets
59(e) stands in contrast to a Rule 60(a) motion that requests
the correction of a clerical error, one that is purely
procedural, or one that requests relief that is "wholly
collateral" to the judgment. White, 455 U.S. at
451 (1982). Any motion that requests substantive relief
related to the subject matter of the judgment is a Rule 59(e)
motion. Id. Accordingly, a post-judgment motion that
"involves reconsideration of matters properly
encompassed in a decision on the merits," is properly
considered a Rule 59(e) motion. Osterneck v. Ernst &
Whinney, 489 U.S. 169, 174 (1989) (internal quotations
omitted); see Clipper Express v. Rocky Mountain Motor
Tariff Bureau, Inc., 690 F.2d 1240, 1249 (9th Cir. 1982)
("Rule 59(e) provides an efficient mechanism by which a
trial court judge can correct an otherwise erroneous judgment
without implicating the appellate process); see also
Berge v. United States, 949 F.Supp.2d 36, 41 (D.D.C.
2013) (a motion that asks the court to consider
previously-raised but overlooked legal arguments is a Rule
the case here. Engelke more or less argues that the Court
failed to address whether Mid-Continent was negligent for
violating § 69-4-5 02(2)(a), MCA. It is undisputed that
Engelke raised the argument in his summary judgment motion.
(See Doc. 42 at 5) ("... [Mid-Continent through
its subrogors] breached its duty pursuant to §
69-4-502(2)(a), MCA to be a member of the one-call
notification center.") And as Mid-Continent noted in its
response, the Court did not in fact address whether
Mid-Continent, through its subrogors, was negligent as a
result of violating the statute. (Doc. 84 at 4).
pointing out that the Court did not rule on the issue, and
requesting it do so, Engelke has asked the Court to
reconsider a legal issue that it overlooked, and in essence
"reconsider ... matters properly encompassed in a
decision on the merits[, ]" Osterneck, 489 U.S.
at 174, which is the essence of a Rule 59(e) motion.
Accordingly, the Court will construe it as such. See
Munden v. Ultra Alaska Associates, 849 F.2d
383, 387 (9th Cir. 1988); 9 J. Moore, Moore's Federal
Practice ¶ 204.12 (1985) ("Any motion that draws
into question the correctness of the judgment is functionally
a motion under Civil Rule 59(e), whatever its label.").
foregoing reasons, the Court construes Engelke's Rule
60(a) motion for clarification (Doc. 81) as a Rule 59(e)
motion to alter, amend or vacate the order. The Court GRANTS
Engelke's motion and VACATES its June 27, 2018, Order
(Doc. 78). The Court will issue a new ...