motion to alter a judgment under section 6672

BUNCH v. COMM, Cite as 109 AFTR 2d 2012-XXXX, 05/24/2012

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ROY DON BUNCH, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE SERVICE, Defendant.

Case Information:

Code Sec(s):
Court Name:	UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE,
Docket No.:	NO. 2:10-CV-122,
Date Decided:	05/24/2012.
Prior History:
Disposition:

HEADNOTE

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Reference(s):

OPINION

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE,

ORDER

Judge: J. RONNIE GREER UNITED STATES DISTRICT JUDGE
Plaintiff has moved, pursuant to Federal Rule of Civil Procedure 59, to alter or amend, [Doc. 56], the judgment of the Court entered on March 8, 2012, [Doc. 55]. Rule 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later than 28 days after entry of the judgment.” Fed. R. Civ. P. 59(e). Thus, a motion to alter or amend is not timely in this case unless it was filed no later than April 5, 2012. ¹ The motion was filed on April 6 and is untimely and the motion, pursuant to Rule 59, is DENIED.
In his reply, plaintiff asks that the “Judgment be set aside pursuant to Fed. R.Civ. P. 60,” [Doc. 60].See Feathers v. Chevron U.S.A. , 141 F.3d 264, 268 (6th Cir. 1998). The Court will, therefore, treat the motion as one filed pursuant to Rule 60. It appears Bunch seeks relief under Rule 60(b). A party may obtain relief from judgment under that Rule for various reasons, including:

((1)) mistake, inadvertence, surprise, or excusable neglect;

((2)) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

((3)) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

((4)) the judgment is void;

((5)) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

((6)) any other reason that justifies relief.

Fed. R. Civ. P. 60(b)(1–6). Bunch fails to establish grounds for relief under Rule 60(b).
Presumably, Bunch makes a claim of legal error which is cognizable under Rule 60(b)(1). The Sixth Circuit has recognized a claim of legal error as subsumed in the category of mistake under Rule 60(b)(1). See Pierce v. United Mine Workers, 770 F.2d 449, 451 (6th Cir. 1985) (citingBarrier v. Beaver , 712 F.2d 231, 234 (6th Cir. 1983)). Significantly, though, a Rule 60(b) motion may not be used to relitigate the merits of a claim. Barnes v. Clinton, 57 Fed. App'x 240, 2003 WL 245329 (C.A. 6 (Ky.)) (citing Mastini v. American Tel. & Tel. Co., 369 F.2d 378, 379 (2d Cir. 1966)). The present motion raises no arguments not previously made by the plaintiff and is an attempt by him to simply relitigate the case. Because he simply seeks to relitigate issues already decided by the Court, his motion pursuant to Rule 60(b)(1) is DENIED.
The only other arguable basis for relief under Rule 60(b) is found in Rule 60(b)(6). However, “[b]ecause of the residual nature of Rule 60(b)(6), a claim of simple legal error, unaccompanied by extraordinary or exceptional circumstances, is not cognizable under Rule 60(b)(6).” Pierce, 770 F.2d at 451. Plaintiff alleges no exceptional or extraordinary circumstances placing his motion within the purview of Rule 60(b)(6). To the extent, then, that Bunch proceeds under Rule 60(b)(6), his motion is likewise DENIED.
For all the reasons set forth herein, plaintiff's motion, [Doc. 56], is DENIED.
So ordered.
ENTER:
J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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¹   The 28 day period is computed by counting every day, excluding the day of filing of the judgment, including the last day of the period. Fed. R. Civ. P. 6(a). Thus, beginning with March 9, 2012 and counting the 28th day, the time for filing expired on April 5, 2012, at midnight. The Court may not extend the time for filing. Fed. R.Civ. P. 6(b)(2).
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