United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT, DISTRICT JUDGE
matter comes before the Court on the pro se motion
of plaintiff Robert Bentley Marlow to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e)
or, in the alternative, for a new trial pursuant to Federal
Rule of Civil Procedure 59(a)(1)(A) (Doc. 92). Defendant
Vance E. Sawyer has responded to the motion (Doc. 94). The
Court also considers the parties' respective requests for
costs and objections thereto (Docs. 81-83, 86-89 & 93).
pro se, Marlow filed this personal injury and
property damage lawsuit against Sawyer alleging negligence
and willful and wanton conduct related to an auto accident
that occurred on September 28, 2014, on Interstate 24 in
Johnson County, Illinois. See Final Pretrial Order
at 1 (Doc. 55). When the accident occurred, Marlow was asleep
in the passenger seat of his 1992 GMC Sierra pickup truck,
which was being driven by his friend Allen Moser at the time.
Id. at 2. Sawyer had been drinking alcohol before
the accident and admitted that the accident was his fault.
Id. Therefore, only the issues for trial were
whether Sawyer's conduct was willful and wanton and the
amount of damages.
case was tried to a jury on January 22 and 23, 2018. The
Court allowed Marlow to present relevant evidence of punitive
damages to the jury. However, it disallowed certain evidence
of Sawyer's post-accident conduct to avoid responsibility
for the accident, finding that such conduct was not relevant
to whether Sawyer was acting with reckless indifference at
the time he caused the accident (Doc. 61). On January 23,
2018, the jury rendered a verdict in favor of Marlow in the
amount of $30, 000 in compensatory damages and $10, 000 in
punitive damages. Written judgment was entered the following
day, January 24, 2018.
Motion to Alter or Amend Judgment
February 26, 2018, Marlow filed the pending motion to alter
or amend the punitive damages component of the verdict
pursuant to Rule 59(e). In his motion, he makes three
arguments. First, he argues that the Court erred in barring
evidence of some of Sawyer's post-accident conduct to
avoid responsibility for the accident. Second, he believes
the defense improperly argued Marlow's financial
condition to the jury when income and wage loss were not in
issue. Third, he asks the Court to increase the amount of
punitive damages because the amount awarded by the jury is
insufficient to serve the purpose of punishing Sawyer in
light of his reprehensible post-accident conduct the jury was
not able to consider.
Court cannot consider Marlow's requests under Rule 59(e)
because he filed his motion too late. A motion to alter or
amend a judgment under Rule 59(e) “must be filed no
later than 28 days after the entry of the judgment.”
Fed.R.Civ.P. 59(e). The Court cannot extend this deadline.
Fed.R.Civ.P. 6(b)(2). Marlow's 28-day period began to run
the day judgment was entered on the docket sheet-January 24,
2018-and ended on February 21, 2018, 5 days before his motion
was received and docketed by the Clerk's Office. He is
not entitled to extend the 28 days by 3 extra days for
service under Rule 6(d) because the 28-day period begins on
entry of judgment, not on its service. Williams
v. Illinois, 737 F.3d 473, 475 (7th Cir. 2013)
(“We . . . conclude that Rule 6(d) . . . does not
extend the deadline for Rule 59(e) motions.”). Nor is
he entitled to the benefit of the prison “mailbox
rule” of Houston v. Lack, 487 U.S. 266, 276
(1988), where his motion might be deemed filed the day he
placed it in the mail; the mailbox rule applies only to
incarcerated people. See Clowdis v. Silverman, 666
F. App'x 267, 271 n.3 (4th Cir. 2016); Kareem v.
FDIC, 482 F. App'x 594, 595 (D.C. Cir.
delay, however, is not fatal to his motion. Any motion for
reconsideration filed after the 28-day deadline should be
considered under Federal Rule of Civil Procedure 60(b) rather
than 59(e). Williams, 737 F.3d at 475. It is well
settled that Rule 60(b) relief is an extraordinary remedy and
is granted only in exceptional circumstances. Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005); McCormick v. City
of Chi., 230 F.3d 319, 327 (7th Cir. 2000) (citing
Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th
Cir. 1994)). Rule 60(b) allows a court “to address
mistakes attributable to special circumstances and not merely
to erroneous applications of law.” Russell v. Delco
Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th
Cir. 1995). The rule authorizes a Court to grant relief from
judgment for the specific reasons listed in the rule but does
not authorize action in response to general pleas for relief.
See Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill.
1995). It is also not an appropriate vehicle for addressing
simple legal error, for rehashing old arguments, or for
presenting arguments that should have been raised before the
court made its decision. Russell, 51 F.3d at 749;
Rutledge v. United States, 230 F.3d 1041, 1052 (7th
Cir. 2000); Young, 161 F.R.D. at 62; In re Oil
Spill by “Amoco Cadiz, ” 794 F.Supp. 261,
267 (N.D. Ill. 1992), aff'd, 4 F.3d 997 (7th
Cir. 1993) (Table). Rather, it is a collateral attack on a
judgment, and the grounds for that attack must be something
other than an argument that could have been used to obtain
reversal on direct appeal. Kiswani v. Phoenix Sec.
Agency, Inc., 584 F.3d 741, 743 (7th Cir. 2009).
has not presented any exceptional circumstances that justify
reconsideration of the judgment in this case. He presents
only arguments he has already made to the Court and that he
could have made on direct appeal (had he filed a timely
notice of appeal) to try to convince the Court of Appeals to
reverse the judgment. Such arguments do not justify relief
under Rule 60(b).
Alternative Motion for a New Trial
alternative to altering or amending the judgment under Rule
59(e), Marlow asks the Court for a new trial pursuant to Rule
59(a)(1)(A). However, like a Rule 59(e) motion, a motion for
a new trial “must be filed no later than 28 days after
the entry of judgment, ” Fed.R.Civ.P. 59(b), and again,
the Court cannot extend that deadline, Fed.R.Civ.P. 6(b)(2).
Thus, for the reasons set forth above with respect to Rule
59(e), Marlow's motion for a new trial is also untimely.
The Court will therefore deny it.
party seeks an award of costs for this litigation. Costs
allowed to be taxed are set forth in 28 U.S.C. § 1920,
and, unless mandated by another authority, the Court has
discretion to decide whether an award of costs is
appropriate, Chesemore v. Fenkell, 829 F.3d 803, 816
(7th Cir. 2016). Ordinarily costs are awarded as a matter of
course to the prevailing party. Fed.R.Civ.P. 54(d)(1);
Krocka v. City of Chi., 203 F.3d 507, 518 (7th Cir.
2000) (noting presumption that prevailing party is entitled
to costs). However, Federal Rule of Civil Procedure 68
provides an exception to the general rule. Under that rule,
at least 14 days before the trial date, a defendant may offer
to allow judgment to be taken against him on specified
terms-usually, for a specified amount-with the costs accrued
up to that time. Fed.R.Civ.P. 68(a). The plaintiff may accept
the offer in writing, and the judgement will enter after the
offer and notice of acceptance are filed. Id. If the
plaintiff does not accept the offer within 14 days of
service, the offer is considered withdrawn. Fed.R.Civ.P.
68(b). If a plaintiff who declines an offer of judgment
ultimately goes on to obtain a judgment “not more
favorable than the unaccepted offer, the offeree must pay the
costs incurred after the offer was made.” Fed.R.Civ.P.
68(d). The primary purpose of Rule 68 is to encourage
settlement and to avoid protracted litigation by prompting
both parties to evaluate the risks and costs of litigation
and then to balance them against the likelihood of success at
trial. Marek v. Chesny, 473 U.S. 1, 5 (1985).
case, Marlow is the prevailing party because, as noted above,
the jury rendered a verdict in his favor in the total amount
of $40, 000. However, since judgment was entered, Sawyer has
informed the Court that he had made an offer of judgment in
the amount of $50, 000, which was proposed to cover all sums
sought by Marlow, including pre-offer costs. Sawyer served
the offer on Marlow on September 22, 2017, 73 days before the
December 4, 2017, trial date set at that time. Marlow did not
accept the offer, and it naturally expired under the terms of
the rule on October 6, 2017.
argues, with no citation to relevant supporting caselaw, that
Rule 68 does not apply. First, he argues that Rule 68 had no
effect because there were motions pending at the time of the
offer which had not been ruled on at the time the offer
expired. He argues it was unreasonable to expect him to
accept an offer of judgment while there were outstanding
discovery and sanctions questions. This objection has no
merit. Neither Rule 68 nor any other authority exempts a case
from Rule 68's ambit while motions are pending. Rule 68
is intended to ...