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Podhorn v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


April 4, 2006

PAUL E. PODHORN, JR., PETITIONER,
v.
UNITED STATES OF AMERICA, ET AL., RESPONDENTS

The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

Before the Court is Plaintiff's motion for reconsideration of the order that closed his civil case because his criminal case is ongoing (Doc. 4). Technically, a "Motion to Reconsider" does not exist under the Federal Rules of Civil Procedure. The Seventh Circuit Court of Appeals has held, however, that a motion challenging the merits of a district court order will automatically be considered as having been filed pursuant to Rule 59(e) or Rule 60(b) of the Federal Rules of Civil Procedure. See, e.g., Mares v. Busby, 34 F.3d 533, 535 (7th Cir. 1994); United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). As noted in Deutsch, "in cases where it is unclear whether a motion challenging a judgment on the merits is made under Rule 59(e) or Rule 60(b)," the date of service will determine how the motion will be treated. Thus, "'if the motion is served within ten days of the rendition of judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b).'" Id. (citations omitted).

The order closing the case was entered on January 24, 2006, and the instant motion was filed on January 30, within the 10-day period. See FED. R. CIV. P. 59(e). Therefore, under Deutsch, the Court will construe the motion as a motion to alter or amend judgment, filed pursuant to Rule 59(e), which may only be granted if a movant shows there was mistake of law or fact or presents newly discovered evidence that could not have been discovered previously. Matter of Prince, 85 F.3d 314 (7th Cir. 1996); Deutsch v. Burlington Northern R. Co., 983 F.2d 741 (7th Cir. 1993).

Upon review of the record, the Court remains persuaded that its ruling closing the case and directing the filing of all documents in the criminal case was correct. Therefore, the instant motion is DENIED.

IT IS SO ORDERED.

G. PATRICK MURPHY Chief United States District Judge

20060404

© 1992-2006 VersusLaw Inc.



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