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Marlow v. Sawyer

United States District Court, S.D. Illinois

March 22, 2018

ROBERT BENTLEY MARLOW, Plaintiff,
v.
VANCE E. SAWYER, Defendant.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT, DISTRICT JUDGE

         This 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).

         I. Background

         Appearing 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.

         This 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.

         II. Motion to Alter or Amend Judgment

         On 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.

         The 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. 2012).[1]

         Marlow's 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).

         Marlow 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).

         III. Alternative Motion for a New Trial

         As an 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.

         IV. Costs

         Each 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).

         In this 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.

         Marlow 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 ...


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