E.D.N.Y. Notes Circuit Split Re: Whether Motion for Reconsideration Based on Judicial Error Falls Under Rule 60(b)(1)
Per Air India, Ltd. v. Brien, 239 F.R.D. 306 (E.D.N.Y. Dec. 27, 2006):
Plaintiffs contend that this is properly a 60(b)(1) motion for relief from judicial error. The Circuit Courts of Appeal are split as to whether a motion for reconsideration based on judicial error falls under 60(b)(1). [FN6] The Second Circuit caselaw is equally confusing. See, e.g., Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir.1964) ("Whether relief may be sought under Rule 60(b) for what is merely an error by the court and, if so, for how long beyond the expiration of the ten-day limit set by Rule 59(e) for motions to 'alter or amend a judgment' are not altogether clear."). In distinguishing between the opinions of the various Circuit courts, Moore's Federal Practice asserts that "[t]he leading proponent for the construction of Rule 60(b)(1) so as to permit consideration of legal errors by the court was Judge Friendly of the Second Circuit." 12-60 Moore's Federal Practice-Civil § 60.41. In Schildhaus, the Second Circuit noted that "there is indeed good sense in permitting the trial court to correct its own error and, if it refuses, in allowing a timely appeal from the refusal; no good purpose is served by requiring the parties to appeal to a higher court, often requiring remand for further trial proceedings, when the trial court is equally able to correct its decision." Schildhaus, 335 F.2d at 531. However, the impact of Schildhaus is questionable, as the decision was limited to a very specific situation where a Supreme Court ruling decided eleven days after the trial court in Schildhaus ruled on the same legal issue clearly indicated that the ruling had been legally incorrect. See id. Thus, Moore's notes that the "Second Circuit [c]autiously [p]ermits [r]elief [f]rom [l]egal [e]rror." 12-60 Moore's Federal Practice-Civil § 60.41. While the court in Schildhaus embraced the reach of 60(b)(1) to include judicial error, it was also cautious to limit such interpretation to very specific circumstances such as those present in Schildhaus.
FN6. See, e.g., Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir.1982) ("The circuits are split as to whether errors of law may be corrected under Rule 60 motions.") (citing 7 J. Moore & J. Lucas, Moore's Federal Practice para. 60.22 (2d ed.1982); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2858, at 176-80 (1973 & Supp.1982); 1 ALR Fed. 771 (1969 & Supp.1981); Note, Federal Rule 60(b): Finality of Civil Judgments v. Self-Correction by District Court of Judicial Error of Law, 43 Notre Dame Law. 98 (1967)); Silk v. Sandoval, 435 F.2d 1266, 1267 (1st Cir.1971), cert. denied, Silk v. Kleppe, 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971) (Refusing to apply 60(b)(1) to judicial error, noting that "[i]f the court merely wrongly decides a point of law, that is not 'inadvertence, surprise, or excusable neglect.' "); Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 460-61 (8th Cir.2000), cert. denied, 531 U.S. 929, 121 S.Ct. 309, 148 L.Ed.2d 248 (2000) ("It remains the law in this Circuit that 'relief under Rule 60(b)(1) for judicial error other than for judicial inadvertence' is not available.") (citation omitted); but see Hill v. McDermott, Inc., 827 F.2d 1040, 1043 (5th Cir.1987), cert. denied, 484 U.S. 1075, 108 S.Ct. 1052, 98 L.Ed.2d 1014 (1988) ("Rule 60(b)(1) does allow relief from final judgments on account of 'mistake,' and, in this circuit, the rule may be invoked for the correction of judicial error, but only to rectify an obvious error of law, apparent on the record. Thus, it may be employed when the judgment obviously conflicts with a clear statutory mandate or when the judicial error involves a fundamental misconception of the law.")