                                 UNITED STATES COURT OF APPEALS
                                             Tenth Circuit
                                  Byron White United States Courthouse
                                           1823 Stout Street
                                        Denver, Colorado 80294
                                            (303) 844-3157
Patrick J. Fisher, Jr.                                                                  Elisabeth A. Shumaker
        Clerk                                                                            Chief Deputy Clerk

                                                October 25, 1999


        TO:      ALL RECIPIENTS OF THE ORDER AND JUDGMENT

        RE:      98-6141, Fox v. Noram Energy Corporation
                 Filed on October 21, 1999

               The first paragraph of the order and judgment contains a clerical error. The first
        paragraph is replaced in its entirety by the following paragraph:

                 The plaintiffs Jason Fox, Jeremy Callaway, and Elliot Byers seek to appeal the
                 district court's grant of summary judgment in this diversity negligence action.
                 The plaintiffs also challenge the district court's denial of their motion to
                 reconsider the summary judgment ruling. We first conclude that, because the
                 plaintiffs did not comply with the time limitations of Fed. R. Civ. P. 59(e) in
                 filing their motion to reconsider, the district court properly characterized the
                 plaintiffs' motion to reconsider as a motion for relief from the judgment under
                 Fed. R. Civ. P. 60(b). As a result, we may not now directly review the district
                 court's initial summary judgment ruling. We further conclude that the district
                 court did not abuse its discretion in denying the plaintiffs' motion to reconsider
                 under the Fed. R. Civ. P. 60(b) standards.

        A corrected copy of the order and judgment is attached.

                                                             Sincerely,
                                                             Patrick Fisher, Clerk of Court

                                                             By :   Keith Nelson
                                                                    Deputy Clerk


        encl.
                                                                                   F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   OCT 21 1999
                                       TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                          Clerk
 JASON FOX, JEREMY CALLAWAY,
 and ELLIOT BYERS,

           Plaintiffs-Appellants,                                No. 98-6141

 v.                                                     (D.C. No. CIV-96-0372-L)
                                                      (Western District of Oklahoma)
 NORAM ENERGY CORPORATION, a
 Delaware Corporation, formerly known as
 ARKLA, INC.,

           Defendant-Appellee.


                                    ORDER AND JUDGMENT*


Before HENRY and MURPHY, Circuit Judges, and KIMBALL, District Judge,**


       The plaintiffs Jason Fox, Jeremy Callaway, and Elliot Byers seek to appeal the

district court's grant of summary judgment in this diversity negligence action. The

plaintiffs also challenge the district court's denial of their motion to reconsider the

summary judgment ruling. We first conclude that, because the plaintiffs did not comply

with the time limitations of Fed. R. Civ. P. 59(e) in filing their motion to reconsider, the


       *
               This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
              The Honorable Dale A. Kimball, United States District Judge for the
District of Utah, sitting by designation.
district court properly characterized the plaintiffs' motion to reconsider as a motion for

relief from the judgment under Fed. R. Civ. P. 60(b). As a result, we may not now

directly review the district court's initial summary judgment ruling. We further conclude

that the district court did not abuse its discretion in denying the plaintiffs' motion to

reconsider under the Fed. R. Civ. P. 60(b) standards.



                                     I. BACKGROUND

       This action arises out of carbon monoxide poisoning suffered by the plaintiffs on

March 12, 1994 at the home of Becky Kent in Chickasha, Oklahoma. The carbon

monoxide came from a defective furnace, and the plaintiffs allege that Noram, which

provided gas to Ms. Kent’s home, had notice of the defect, failed to take remedial action,

and thereby caused their injuries.

       After the parties conducted discovery, Noram moved for summary judgment. In a

July 31, 1997 order, the district court granted the motion. Summarizing the relevant facts,

the court noted that the “plaintiffs did not directly dispute any of defendant’s undisputed

facts.” See Aplt’s App., doc. 1-D, at 2 n.2. Pursuant to a local court rule, the court

therefore based its legal conclusions on Noram’s statement of uncontroverted facts.

Relying on Noram’s account, the court found that “from the time of the installation of the

furnace until the time of the accident, no one living in the house made any complaints to

[Noram] regarding the furnace.” Id. at 2. Although Ms. Kent had complained to the


                                               2
company about a hissing noise emanating from the gas meter, Noram responded to her

complaint, discovered a leak in the meter, and repaired it.

        In granting summary judgment to Noram, the court invoked a decision holding

that:

               The consumer, by application for gas service, assumes the
               burden of inspecting and maintaining in a safe condition the
               pipe and fittings on his property, and the gas company has the
               right to assume that this duty will be performed. A gas
               company which does not install its customers pipes’ and has
               no control over them, is in no way responsible for the
               condition in which they are maintained, and is not liable for
               injuries caused by leaks therein, of which it has no
               knowledge.

Id. at 5 (citations omitted) (quoting Muniz v. Masco Corp., 744 F. Supp. 266, 267-68

(W.D. Okla. 1990)).

        The plaintiffs did not file a notice of appeal of the district court’s order granting

summary judgment to Noram. However on August 11, 1997, they did file a motion to

reconsider the district court’s summary judgment ruling. On August 18, 1997, the district

court struck the motion for failure to comply with Local Rule 7.1(c), which limits briefs

to twenty-five pages. See Aplt’s App. doc. 52-B. On the following day, the plaintiffs

filed an “Application to Reduce Plaintiff’s Motion to Reconsider to 25 pages by Using A

Smaller Font and Spacing.” See id. doc. 50. The court granted the application on August

25, 1997, and the next day the plaintiffs filed another motion to reconsider. The plaintiffs

informed this court at oral argument that, aside from the changes in font size and spacing,


                                               3
the second motion to reconsider was identical to the first one.

       On March 2, 1997, the district court denied the plaintiffs’ motion to reconsider.

See id., doc. 1-C. Observing that the motion was not filed within the ten-day period after

the entry of judgment, as required by Fed. R. Civ. P. 59(e), the court said that it would

treat the plaintiffs’ second motion as a motion for relief from the judgment under Fed. R.

Civ. P. 60(b). The court found the “exceptional circumstances” necessary for granting

relief under Fed. R. 60(b) to be lacking, and it therefore denied the motion. It concluded

that the plaintiffs had basically asserted the same arguments that they had already

presented to the district court in response to Noram’s summary judgment motion.

Although the plaintiffs did attempt to present some additional information, the court

found that they had failed to offer a sufficient explanation for their failure to present this

information in their initial response.

       The plaintiffs filed a timely notice of appeal of the district court’s March 2, 1997

order. However, they did not file a separate notice of appeal within thirty days of the

court’s July 31, 1997 order granting Noram’s motion for summary judgment.



                                      II. DISCUSSION

       On appeal, the plaintiffs contend that the district court erred in characterizing their

motion to reconsider as a motion for relief from the judgment under Fed. R. Civ. P. 60(b)

rather than as a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e). They


                                               4
note that characterizing their second motion as a motion to alter or amend the judgment

under Rule 59 would allow this court to review the merits of the district court’s summary

judgment ruling (rather than merely the motion to reconsider). See Artes-Roy v. City of

Aspen, 31 F.3d 958, 961 n. 5 (10th Cir.1994) (observing that an appeal from the denial of

a Rule 59 motion is sufficient to permit consideration of the merits of the underlying

summary judgment ruling if the appeal is otherwise proper). They maintain that there is

evidence in the record supporting their contention that Noram had actual notice of the

defective furnace and that, as a result, the district court erred in granting summary

judgment to the company.

       As the district court observed, Rule 59(e) provides that a motion to alter or amend

the judgment must be filed within ten days of the entry of the judgment. Rule 6 of the

Federal Rules of Civil Procedure states that the time for filing a motion to alter or amend

the judgment under Rule 59(e) may not be extended “except to the extent and under the

conditions stated in [Rule 59 itself].” Fed. R. Civ. P. 6(b). Because Rule 59 does not

authorize an extension of the time for filing a motion to alter or amend the judgment, the

district court lacks authority to grant such an extension. See Parker v. Board of Pub.

Utils. of Kansas City, Kan., 77 F.3d 1289, 1291 (10th Cir. 1996); Collard v United States,

10 F.3d 718, 719 (10th Cir. 1993).

       “[I]f the motion is filed more than ten days after the entry of judgment, it is

considered a motion seeking relief from the judgment under Fed. R. Civ. P. 60(b).”


                                              5
Hatfield v. Board of County Comm’rs for Converse, County, 52 F.3d 858, 861 (10th Cir.

1995). The distinction between a Rule 59 motion and a Rule 60 motion is significant in

preserving the right to appeal. The filing of a timely Rule 59(e) motion tolls the time

period for filing a notice of appeal of the underlying judgment, while the filing of a Rule

60(b) motion more than ten days after the entry of the judgment does not. See Fed. R.

App. P. 4(a)(4)(iv), (vi).



     A. The Proper Characterization of the Plaintiffs’ Second Motion to Reconsider

       The plaintiffs maintain that the district court should have treated their second

motion to reconsider as a timely Rule 59(e) motion, even though it was not filed until

August 26, 1993 (well after the expiration of the ten-day period from the July 31, 1997

entry of judgment in favor of Noram). The plaintiffs’ theory is that because it was

identical in all respects but font size and spacing to the motion to reconsider that they

sought to file on August 11, 1997 (within the ten day period for Rule 59(e) motions), the

motion filed on August 26, 1997 should “relate back” such that it is deemed to have been

filed on August 11, 1997.1 Given the tolling effect of a timely Rule 59(e) motion, the

relation back of the second motion would render the plaintiffs’ notice of appeal timely as

to the underlying summary judgment ruling and would allow this court to review the


       1
               Here, the last day for filing a timely Rule 59 motion, August 10, 1997, fell
on a Sunday. Accordingly, under Fed. R. Civ. P. 6(a), the plaintiffs had until August 11,
1997 to file the motion.

                                              6
merits of that ruling in this appeal.

       The plaintiffs’ argument is not supported by our precedent. Our decisions have

repeatedly held, pursuant to Fed. R. Civ. P. 6, that a district court lacks the authority to

extend the time for filing a Rule 59 motion. See Parker, 77 F.3d at 1291; Collard, 10 F.3d

at 719. The Supreme Court has indicated that there may be certain “unique

circumstances” in which a district court’s mistaken statements about the timeliness of a

Rule 59 motion have caused a party not to file a timely notice of appeal of the underlying

judgment and in which the misled party should be allowed to pursue the appeal. See

Thompson v. INS, 375 U.S. 384, 387 (1964). However, that exception “applies only

where a party has performed an act which, if properly done, would postpone the deadline

for filing his appeal and has received specific assurance by a judicial officer that this act

has been properly done.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989)

(emphasis added).

        In this case, the plaintiffs did not receive “specific assurance” from the district

court that they had filed a timely Rule 59 motion. The court struck the plaintiffs’ first

motion to reconsider because it violated a local rule. Although it granted the plaintiffs

permission to file a second motion to reconsider, there is no indication in the record that

the court informed the parties how it would treat the second motion. The court’s order

granting the plaintiffs’ application simply states that the plaintiffs will be allowed to file

the motion; the order does not state that the motion will be treated as a Rule 59 motion or


                                               7
a Rule 60 motion, or that the time for the plaintiffs to file a notice of appeal of the

underlying summary judgment ruling will be extended.

          In the absence of such a specific assurance from the district court, the plaintiffs

were chargeable with knowledge of the Federal Rules of Civil Procedure and the local

rules of court. “Rules of procedure are vitally important in judges’ efforts to manage

burgeoning caseloads with some semblance of efficiency.” Air Line Pilots Ass’n v.

Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994). “Valid local rules are an

important vehicle by which courts operate,” and they “carry the force of law.” Id. Here,

the district court reasonably applied the local rules and the Federal Rules of Civil

Procedure. See id. (concluding that “[w]ithin wide limits, it is for courts, not litigants, to

decide what rules are desirable and how rigorously to enforce them.”). Under those rules,

when the plaintiffs failed to file within the ten-day period established by Rule 59 a

motion to alter or amend the judgment that complied with applicable page limitation,

their second motion to reconsider was properly treated as a Rule 60 motion, and the time

period for filing a notice of appeal of the underlying summary judgment motion was not

tolled.

          The First Circuit’s decision in Air Line Pilots Ass’n provides further support for

this conclusion. There, the district court struck a motion to reconsider a summary

judgment ruling because it failed to comply with a local rule. The court struck the first

motion (which the plaintiffs had submitted within the ten-day period established by Fed.


                                                 8
R. Civ. P. 59(e)), and the plaintiff then filed a second motion that complied with the local

rule but that was submitted outside the ten day period. After the district court denied the

second motion, the plaintiff filed a notice of appeal in which it sought to challenge not

only the denial of the motion to reconsider but also the underlying summary judgment

ruling. Noting that the time for filing a Rule 59(e) motion could not be extended, the

First Circuit held that the second motion to reconsider did not relate back to the first

motion and that the second motion “cannot serve as a vehicle for restarting the appeal

period because it was filed beyond the 10-day period stipulated in Rule 59(e).” Air Line

Pilots Ass’n, 26 F.3d at 225. The court therefore concluded that it could not review the

summary judgment ruling on the merits, and it considered only the district court’s

decisions denying the plaintiff’s timely post-trial motions.

       The same approach is warranted here. Because the plaintiffs did not file a timely

notice of appeal of the district court’s July 31, 1997 summary judgment ruling, we will

not review the merits of that ruling. Because the district court struck the plaintiffs’ first

motion to reconsider pursuant to a reasonable application of binding local rules and did

not give the plaintiffs any specific assurance that their second motion to reconsider would

be treated as a Rule 59 motion, we conclude that the district court properly characterized

the plaintiffs’ second motion to reconsider as a Rule 60(b) motion, and we will review

that decision accordingly.




                                               9
              B. The Denial of the Motion to Reconsider Under Rule 60(b)

       Rule 60(b) of the Federal Rules of Civil Procedure authorizes the court to grant

relief from an order or a judgment on a number of specific grounds, including

inadvertence, excusable neglect, fraud, and newly discovered evidence.         “Relief under

Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.” Bud

Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440 (10th Cir. 1990).

We review the district court’s denial of a motion for relief from the judgment under Rule

60(b) for an abuse of discretion. Id.

       In their appellate brief, the plaintiffs do not contest the district court’s conclusion

that their motion to reconsider presented many of the same arguments that were advanced

in response to Noram’s initial motion for summary judgment. As to the new information

presented in support of the motion, the plaintiffs have not explained why this information

was not presented in their initial response to the summary judgment motion. Accordingly,

we conclude that the district court did not abuse its discretion in denying the plaintiffs’

motion to reconsider under the Rule 60(b) standards.



                                    III. CONCLUSION

       For the reasons set forth above, we conclude that we lack jurisdiction to consider

the merits of the district court’s July 31, 1997 order granting summary judgment to the

defendant Noram. We AFFIRM the district court’s March 2, 1998 order denying the


                                              10
plaintiffs’ motion to reconsider.

                                    ENTERED FOR THE COURT,

                                    PER CURIAM




                                     11
