                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 05a0181n.06
                                 Filed: March 10, 2005

                                           No. 03-2313

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


VICTOR LOMMEN, natural father of              )
Joshua Lommen, a minor; and JOSHUA            )
LOMMEN, a minor, by his natural father        )
Victor Lommen,                                )
                                              )    ON APPEAL FROM THE UNITED
       Appellants,                            )    STATES DISTRICT COURT FOR THE
                                              )    EASTERN DISTRICT OF MICHIGAN
v.                                            )
                                              )
JOHN FRANCIS McINTYRE,                        )    OPINION
                                              )
       Appellee.                              )
                                              )

Before: MARTIN, GILMAN, and FRIEDMAN, Circuit Judges.*

       RONALD LEE GILMAN, CIRCUIT JUDGE.                        Victor Lommen seeks a federal

declaratory judgment that he is the “natural father” of Joshua McIntyre-Lommen. His complaint

was dismissed after the district court concluded that it lacked subject matter jurisdiction. Because

Lommen’s notice of appeal from the district court’s dismissal was not timely filed, however, we

reach only the limited question of whether the district court properly denied his motion for

reconsideration. For the reasons set forth below, we AFFIRM the judgment of the district court.


                                       I. BACKGROUND




       *
       The Honorable Daniel M. Friedman, Senior United States Circuit Judge with the Court of
Appeals for the Federal Circuit, sitting by designation.
No. 03-2313
In re: Lommen

        John and Kim McIntyre were married in Michigan in 1983. Kim began an extramarital

relationship in 1991 with Victor Lommen. While still married and living with her husband, Kim

gave birth to a son, Joshua, in December of 1991. The McIntyres eventually divorced and Kim was

remarried to Lommen. Lommen then sought custody of Joshua, who Lommen maintains is his son.

        Following many years of litigation in the Michigan and Illinois state courts regarding the

paternity and custody of Joshua, Victor Lommen filed the present action in May of 2003 in the

United States District Court for the Eastern District of Michigan. Based on the results of a DNA

test, he asked the district court to (1) declare that Lommen is Joshua’s natural father, (2) declare that

the relationship between Joshua and Victor is constitutionally protected under the First and

Fourteenth Amendments, and (3) order McIntyre not to interfere in the exercise of Victor’s and

Joshua’s federal constitutional right.

        Shortly after the complaint was filed, the district court issued an order directing Lommen to

show cause why the case should not be dismissed for lack of subject matter jurisdiction. The order

noted that, on its face, “[t]he Complaint alleges traditional state law issues and does not invoke the

Court’s diversity jurisdiction.” Lommen responded, arguing that the case was within the district

court’s federal question jurisdiction because he was seeking to “vindicate [his] constitutional right

to what has been called the right of parental autonomy or the right to family integrity under the

United States Constitution.” Observing that Lommen had “responded by citing several United

States Supreme Court cases finding a constitutional right of parental autonomy,” the district court

concluded that Lommen had properly invoked the court’s federal question jurisdiction.




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No. 03-2313
In re: Lommen

       Two days later, however, the district court revisited its earlier jurisdictional finding, stating

that “[o]n further reflection, the Court reconsiders that decision sua sponte, and finds that there is

no constitutional right to have the issue of paternity determined by a federal court.” The district

court then dismissed Lommen’s complaint for lack of subject matter jurisdiction. This order was

issued on July 10, 2003.

       On August 19, 2003, Lommen filed a “Motion for Reconsideration,” in which he argued

essentially the same points that he had raised in his earlier response to the court’s show-cause order.

Finding that the motion was filed “well after” the 10-day period allowed under Rule 59(e) of the

Federal Rules of Civil Procedure, the district court denied Lommen’s motion on August 20, 2003.

On September 19, 2003, Lommen filed a timely notice of appeal from the denial.

       Both parties submitted briefs to this court addressing the merits of whether federal question

jurisdiction exists when a party asserts a “federal constitutional right of parental autonomy or family

integrity.” McIntyre also filed a motion to dismiss for lack of jurisdiction, alleging that Lommen’s

appeal of the underlying matter was untimely. The motion to dismiss was referred to a panel of this

court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. That panel, composed of Judges Martin,

Sutton, and Quist, issued an order on June 14, 2004, concluding that Lommen’s “notice of appeal

from the district court’s judgment was not timely.” The panel then referred the motion to us for

consideration of whether “this court nevertheless may have jurisdiction over the limited issue of

whether the motion for reconsideration . . . was properly denied.”


                                          II. ANALYSIS



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No. 03-2313
In re: Lommen

        Lommen did not file his notice of appeal until 71 days after the district court’s dismissal of

his case for lack of subject matter jurisdiction. The Federal Rules of Appellate Procedure require

litigants in civil cases to file a notice of appeal “with the district clerk within 30 days after the

judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). But certain post-decision

motions, including a motion for reconsideration, toll this 30-day period. Id. at 4(a)(4). “[A]ny of

the tolling motions must be filed within 10 days after entry of the judgment,” however, and

Lommen’s motion for reconsideration was not filed until 40 days after the district court’s dismissal

of his action. See Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1103 (6th Cir. 1985) (holding that

“a post-decision motion only tolls the 30-day requirement if it is timely filed”). Because Lommen

failed to appeal the district court’s dismissal order within 30 days and because he did not timely file

his motion for reconsideration, we are without jurisdiction to hear his appeal from the district court’s

dismissal of his complaint for lack of subject matter jurisdiction. See Searcy v. City of Dayton, 38

F.3d 282, 287 (6th Cir. 1994) (“A timely notice of appeal is a mandatory and jurisdictional

prerequisite which this court can neither waive nor extend.”).

        In any event, Lommen is essentially seeking a federal declaration that he is Joshua’s father,

and matters of paternity are for the state courts. See Firestone v. Cleveland Trust Co., 654 F.2d

1212, 1215 (6th Cir. 1981) (“Even when brought under the guise of a federal question action, a suit

whose substance is domestic relations generally will not be entertained in a federal court.”). We

therefore dismiss Lommen’s appeal insofar as it challenges the merits of the district court’s

dismissal of his complaint for lack of jurisdiction.




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No. 03-2313
In re: Lommen

         Lommen, however, contends that we may hear his appeal because he filed a timely notice

after the district court’s denial of his motion for reconsideration. But McIntyre maintains that we

lack jurisdiction in the present case because Lommen’s appeal from the district court’s denial of a

motion for reconsideration “is an appeal from a normally nonappealable order.” See Walker v.

Mathews, 546 F.2d 814, 817 n.1 (9th Cir. 1976); see also Md. Tuna Corp. v. MS Benares, 429 F.2d

307, 316 (2d Cir. 1970) (stating that denials of motions for reconsideration “do no more than deny

a motion for reargument, and such orders are generally not appealable”). The cases cited by

McIntyre, however, predate the Supreme Court’s clear pronouncement in Stone v. INS, 514 U.S.

386, 401 (1995), that “[t]he denial of the motion [for reconsideration] is appealable as a separate

final order.” Accordingly, this court has held that appeals from orders denying motions for

reconsideration are within our appellate jurisdiction. See Hood v. Hood, 59 F.3d 40, 42 (6th Cir.

1995).

         In reviewing Lommen’s appeal from the district court’s denial of his motion for

reconsideration, we are mindful that the scope of our appellate review is quite narrow. Id. (“On an

appeal from the denial of a motion [for reconsideration and] for relief from judgment under Rule

60(b), ‘the Court of Appeals may review the ruling for abuse of discretion . . . [, but] an appeal from

denial of Rule 60(b) relief does not bring up the underlying judgment for review.’”) (quoting

Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 263 n.7 (1978)). We therefore do not reach the

underlying dismissal by the district court based upon a lack of subject matter jurisdiction, but instead

review the district court’s denial of the motion for reconsideration for an abuse of discretion.




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No. 03-2313
In re: Lommen

       The district court dismissed Lommen’s complaint for lack of subject matter jurisdiction on

July 10, 2003. Lommen filed his motion for reconsideration 40 days later, on August 19, 2003.

Because a motion for reconsideration brought pursuant to Rule 59(e) of the Federal Rules of Civil

Procedure must “be filed no later than 10 days after entry of the judgment,” we conclude that the

district court did not abuse its discretion in denying Lommen’s motion as untimely.

       When a motion for reconsideration is filed after the 10-day time limitation imposed by Rule

59(e), however, a court may construe the motion as having been filed pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure. See Peake v. First Nat’l Bank & Trust Co., 717 F.2d 1016, 1020

(6th Cir. 1983) (approving the district court’s decision to treat an untimely Rule 59(e) motion as a

timely motion for reconsideration pursuant to Rule 60(b)). The three-judge panel of this court that

first considered McIntyre’s motion to dismiss decided that Lommen’s motion for reconsideration

could properly be construed as a Rule 60(b) motion, and the panel suggested that we consider

whether the motion was properly denied by the district court.

       “As a prerequisite to relief under Rule 60(b), a party must establish that the facts of its case

are within one of the enumerated reasons contained in Rule 60(b) that warrant relief from

judgment.” Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993). Because Lommen’s motion does

not come within the first five grounds specified in the rule, it presumably falls under subdivision (6),

which permits a district court to grant a motion for relief from judgment for “any other reason

justifying relief from the operation of the judgment.” But a motion under Rule 60(b)(6) may be

granted “only in exceptional or extraordinary circumstances.” Hopper v. Euclid Manor Nursing

Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989).

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No. 03-2313
In re: Lommen

        Lommen’s motion for reconsideration does nothing more than restate the arguments

contained in his earlier response to the court’s show cause order. Although “this approach may be

appropriate for an appeal on the merits . . . it fails to establish that the facts of [Lommen’s] case are

within one of the enumerated reasons contained in Rule 60(b).” Johnson v. Unknown Dellatifa, 357

F.3d 539, 543 (6th Cir. 2004). Because Lommen’s motion for reconsideration presented nothing

new, we conclude that the district court did not abuse its discretion in denying his motion. See id.

at 544 (affirming district court’s denial of a rule 60(b)(6) motion where the “motion merely

rephrases the allegations contained in the complaint and presents no new arguments”).


                                        III. CONCLUSION

        For all of the reasons set forth above, we AFFIRM the judgment of the district court.




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