Defendant's Attorney: Rodney E. Loomer, Brad E. Miller, Sherry A. Rozell, Ben K. Upp, Steven E. Ward
Description: The estate of Betty McDermed, by and through its representative Diane
McDermed, along with Betty McDermed’s children, Paul McDermed and Georgia
Iocco (collectively “the McDermeds”), brought a product liability action against the
Ford Motor Company (“Ford”) following Betty McDermed’s death in a car accident.
After Ford filed two motions to exclude the McDermeds’ expert witnesses
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
United States Court of Appeals
February 9, 2018
Elisabeth A. Shumaker
Clerk of Court
(“Daubert1 motions”), the McDermeds filed requests for extensions of time to
respond (the “Extension Motions”), but these requests were filed late. While the
McDermeds’ Extension Motions were pending, the McDermeds filed late responses
to the Daubert motions. The district court denied the Extension Motions and
excluded the McDermeds’ late responses, granted Ford’s Daubert motions, and
granted summary judgment for Ford. The McDermeds then filed a motion to
reconsider, alter, and amend the court’s orders (“Reconsideration Motion”), which
the court denied.
The McDermeds appeal the district court’s denial of their Reconsideration
Motion. They preserve only their argument that the district court erred in
determining the Extension Motions were filed out of time. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
Betty McDermed died after suffering severe injuries in a 2012 car accident, in
which she had been a passenger in a Ford car. The McDermeds sued Ford in the
United States District Court for the District of Kansas, alleging strict liability based
on a design defect and failure to warn. This appeal concerns motions made by both
parties after most of the discovery had taken place.
On February 1, 2016, Ford filed three motions: a motion for summary judgment
and two motions to exclude expert testimony under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993).
1 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
On February 18, 2016, the McDermeds filed the Extension Motions to request
additional time to respond to the Daubert motions. They acknowledged that their
Extension Motions were untimely because their responses had been due on February 15
under Federal Rule of Civil Procedure 6 and District of Kansas Rule 6. They explained
that they had missed the deadline because their counsel had consulted an outdated version
of the Federal Rules of Civil Procedure. Ford opposed the Extension Motions as
untimely filed. On March 14, 2016, before the district court had ruled on the Extension
Motions, the McDermeds filed their responses to Ford’s three motions.
The district court denied the Extension Motions, granted Ford’s Daubert motions,
and ultimately granted summary judgment for Ford. The court explained that in the
District of Kansas, the court must find “excusable neglect” to grant a motion for
extension of time that was filed after the deadline to file a response had passed. Estate of
McDermed v. Ford Motor Co., No. 14-2430-CM, 2016 WL 4128440, at *3 (D. Kan.
Aug. 3, 2016). It considered four factors to determine whether the neglect was
(1) the danger of prejudice to the opposing party;
(2) the length of the delay and its potential impact on judicial
(3) the reason for the delay, including whether it was within the
reasonable control of the movant; and
(4) whether the movant acted in good faith.
Id. at *3-4 (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. L.P., 507 U.S. 380,
394-95 (1993)). The court found the danger of prejudice to Ford was low, but the
other three factors weighed against a finding of excusable neglect. Id. at *4-5.
Because the McDermeds had not filed a timely response to Ford’s Daubert
motions, the district court considered them to be unopposed under District of Kansas
Rule 7.4, and granted the motions to exclude the McDermeds’ experts. Id. at *6. On the
same day, the court granted summary judgment for Ford because the McDermeds’ claims
failed for lack of any “admissible evidence regarding the alleged defect or dangerous
conditions” of the car and how those defects or conditions related to the decedent’s
injuries and death. Estate of McDermed v. Ford Motor Co., No. 14-2430-CM, 2016 WL
4142107, at *3 (D. Kan. Aug. 3, 2016).
The McDermeds filed the Reconsideration Motion. They asked the district court
to alter, amend, or set aside both the order on the Daubert motions and the summary
judgment order under Federal Rules of Civil Procedure 59(e) and 60(b) and District of
Kansas Rule 7.3. They argued for the first time that the Daubert motions were
“dispositive,” which would mean that under Kansas Rule 6.1, the McDermeds should
have had 21 rather than 14 days to respond to them or file the Extension Motions. ROA,
Vol. 9 at 506-07.
The district court denied the McDermeds’ Reconsideration Motion. See Estate of
McDermed v. Ford Motor Co., No. 14-2430-CM, 2017 WL 1492931 (D. Kan. Apr. 26,
2017) (“Reconsideration Order”). First, it denied reconsideration to “correct clear error
or prevent manifest injustice” under Rule 59(e) or District of Kansas Rule 7.3(b). Id. at
*3-4. The court said the McDermeds waived their primary argument—that the Daubert
motions were dispositive motions with a 21-day response period—because they raised it
for the first time in their Reconsideration Motion. Id. at *3. But even if the argument
had been timely raised, “it would not have been clear error for the court to hold these
motions were non-dispositive.” Id. Second, the court also denied relief under Federal
Rule of Civil Procedure 60(b) because the McDermeds had “fail[ed] to identify sufficient
grounds for relief.” Id. at *5.
We have jurisdiction to address only the Reconsideration Order because the
McDermeds’ Notice of Appeal specifically identified only that order and did not mention
the underlying Daubert and summary judgment orders. We address only the
Reconsideration Order’s Rule 59(e) 2 determination because the McDermeds have waived
any arguments about the Rule 60(b) determination. We conclude the district court did
not abuse its discretion in denying relief under Rule 59(e). 3
2 The district court considered the McDermeds’ arguments under Federal Rule
of Civil Procedure 59(e) and District of Kansas Rule 7.3(b) together because the
grounds justifying relief under either rule “are essentially the same.”
Reconsideration Order at *3. The McDermeds have not challenged this treatment on
appeal, nor have they attempted to distinguish arguments made under the two rules.
We therefore follow the district court and consider these arguments together. We
refer to arguments made under both rules as Rule 59(e) arguments.
3 We are not fully convinced the McDermeds’ arguments are adequately
briefed. “[W]e routinely have declined to consider arguments that are not raised, or
are inadequately presented, in an appellant’s opening brief.” Schneider v. City of
Grand Junction Police Dept., 717 F.3d 760, 773 (10th Cir. 2013) (quotations
omitted). And “appellant[s] must present [their] claims in a way that does not
compel us to scavenge through [their] brief for traces of argument.” United States v.
A. Scope of Appeal
Because the McDermeds’ Notice of Appeal lists only the Reconsideration
Order for review and there is no clear intent to appeal the other orders, our
jurisdiction is limited to that issue. A notice of appeal must “designate the judgment,
order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). This court
“lack[s] jurisdiction to review orders not identified in the notice of appeal or its
functional equivalent.” Lebahn v. Owens, 813 F.3d 1300, 1304 n.2 (10th Cir. 2016)
An appeal from the denial of a Rule 59 motion may be sufficient to permit
consideration of the merits of the underlying orders “if the appeal is ‘otherwise
proper, the intent to appeal from the final judgment is clear, and the opposing party
was not misled or prejudiced.’” Artes-Roy v. City of Aspen, 31 F.3d 958, 961 n.5
(10th Cir. 1994) (quoting Grubb v. FDIC, 868 F.2d 1151, 1154 n.4 (10th Cir. 1989)).
Courts have found clear intent to appeal from underlying judgments when parties
brief and argue the merits of the underlying judgment. See Foman v. Davis, 371 U.S.
Fisher, 805 F.3d 982, 991 (10th Cir. 2015). Although the McDermeds’ briefs are
poorly organized and unclear, we address the denial of the Rule 59(e) motion because
those arguments are the most decipherable.
The McDermeds do not argue in their briefs that the district court erred in
denying relief under Rule 60(b). Although their opening brief includes scattered
references to “fraud on the court,” the 60(b) argument raised in the district court,
these references do not satisfy Federal Rule of Appellate Procedure 28(a). This rule
requires an appellant’s argument to contain “a concise statement . . . identifying the
rulings presented for review” and an argument that presents “appellant’s contentions
and the reasons for them.” Fed. R. App. P. 28(a)(6), (a)(8). The McDermeds did not
satisfy this requirement. We therefore consider the Rule 60(b) issue waived as
inadequately briefed. See Fisher, 805 F.3d at 991 (“[A]n issue mentioned in a brief
on appeal, but not addressed, is waived.”) (quotations omitted).
178, 181 (1962) (intent to appeal earlier orders was clear in part because the parties
had briefed the merits of the earlier judgment); Wiest v. Lynch, 710 F.3d 121, 127-28
(3d Cir. 2013) (same); see also Moran Vega v. Cruz Burgos, 537 F.3d 14, 19 (1st Cir.
2008) (considering the record as a whole to determine whether the appellant had
manifested an intent to appeal the underlying order).
The McDermeds’ Notice of Appeal states they are appealing “the final
Judgment entitled Memorandum and Order denying Plaintiffs’. . . Motion for
Reconsideration, and . . . Motion for New Trial entered in this action on April 24,
2017.” ROA, Vol. 10 at 636. This language unambiguously refers only to the
district court’s Reconsideration Order and reflects no intent to appeal the summary
judgment order or any earlier orders. Nor do the McDermeds’ briefs to this court
clearly indicate that they are seeking review of the Daubert and summary judgment
orders. In its response brief, Ford understood the McDermeds had appealed only
from the Reconsideration Order. This court raised the scope of our appellate
jurisdiction at oral argument. The McDermeds did not respond to either opportunity
to argue that we have jurisdiction over the underlying orders. We therefore lack
jurisdiction to consider the underlying orders because they were not included in the
Notice of Appeal and there is no clear intent to appeal them. We consider the
McDermeds’ arguments only as they concern the Reconsideration Order.4
4 For this reason, we decline to consider the McDermeds’ argument that they
were improperly penalized for untimely filings. The alleged “harsh penalty” was the
summary judgment order. Aplt. Br. at 40. We do not have jurisdiction to review this
order because it was not included in the Notice of Appeal.
B. Standard of Review
We review a district court’s denial of a Rule 59(e) motion for abuse of
discretion. See Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010). “We will
not disturb such a decision unless we have a definite and firm conviction that the
lower court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” Id. (quoting Barber ex rel. Barber v. Colo. Dep’t of
Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009)).5
C. Legal Background
We briefly describe the Rule 59(e) standard and then discuss District of
Kansas Rule 6.1, which governs time limits for filing responses to motions.
1. Rule 59(e)
Rule 59(e) authorizes “[a] motion to alter or amend a judgment,” Fed. R. Civ.
P. 59(e), which may be granted when “the court has misapprehended the facts, a
party’s position, or the law.” United States v. Christy, 739 F.3d 534, 539 (10th Cir.
2014). “Grounds warranting a motion to reconsider include (1) an intervening
change in the controlling law, (2) new evidence previously unavailable, and (3) the
5 The McDermeds suggest that our standard of review may be different
because the timing rules at issue are “clearly jurisdictional and not procedural.”
Aplt. Br. at 25. They are incorrect. Federal Rule of Civil Procedure 6, which
governs computing time periods and extending time, “does not alter federal subject
matter jurisdiction in any sense; it is a procedural rule governing procedural matters
and the extension of certain filing periods.” C. Wright & A. Miller, 4B Federal
Practice & Procedure: Civil § 1161 (4th ed., Apr. 2017 update). The local version of
Rule 6, District of Kansas Rule 6.1, is likewise not jurisdictional.
need to correct clear error or prevent manifest injustice.” Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
This court “[does] not ordinarily entertain arguments made for the first time in a
motion to alter or amend the judgment.” Sprint Nextel Corp. v. Middle Man, Inc., 822
F.3d 524, 535 (10th Cir. 2016); id. at 536 (holding “the district court did not abuse its
discretion in declining to alter or amend the judgment based on” an argument made for
the first time in a Rule 59(e) motion).
2. Kansas Rule 6.1
District of Kansas Rule 6.1 governs the time for filing responses to motions.
Motions for extensions of time to file responses must be filed “before the specified time
expires.” D. Kan. R. 6.1(a). A court will not grant extensions requested after the time
expires unless the requesting party has shown “excusable neglect.” Id.
The rule specifies the following time periods to file responses to motions:
(1) Non-dispositive motions. Responses to non-dispositive
motions (motions other than motions to dismiss, motions
for summary judgment, motions to remand, or motions for
judgment on the pleadings) must be filed and served
within 14 days. . . .
(2) Dispositive motions. Responses to motions to dismiss,
motions for summary judgment, motions to remand, or
motions for judgment on the pleadings must be filed and
served within 21 days. . . .
The district court did not abuse its discretion by denying the Reconsideration
Motion. It properly refused to consider arguments raised for the first time in this
motion. Moreover, those arguments were meritless because Daubert motions are
non-dispositive under District of Kansas Rule 6.1(d). The McDermeds’ Extension
Motions were therefore filed too late.
The district court properly declined to consider arguments raised for the first
time in the McDermeds’ Rule 59(e) motion. In their memoranda supporting the
Extension Motions, the McDermeds acknowledged that these motions were untimely.
They nonetheless asked the court to find excusable neglect and grant the extensions.
In their Reconsideration Motion, the McDermeds argued for the first time that their
Extension Motions were timely because the Daubert motions were “dispositive”
motions. The district court concluded the McDermeds “impermissibly” raised these
arguments for the first time in the Reconsideration Motion. Reconsideration Order
at *3. We agree. Rule 59(e) motions should not be used to advance arguments that
the McDermeds could have raised previously. See Sprint Nextel Corp., 822 F.3d at
535-36. The district court thus could have refused to consider the “dispositive
The district court nonetheless explained why the newly raised argument lacked
merit. The McDermeds’ Reconsideration Motion invoked only one Rule 59
rationale: the “need to correct clear error or prevent manifest injustice.” ROA, Vol. 9
at 507. As the district court noted, District of Kansas Rule 6.1(d) lists the types of
dispositive motions: “motions to dismiss, motions for summary judgment, motions
to remand, or motions for judgment on the pleadings.” D. Kan. R. 6.1(d). All other
motions are non-dispositive. Id. Because Daubert motions are not listed as
dispositive motions, they are non-dispositive.
The McDermeds therefore had 14 days to file a response to the Daubert
motions or to file requests for extensions of time to file those responses. See id.
6.1(a). Their Extension Motions were filed on February 18, 2016—17 days after the
Daubert motions were filed. The district court therefore correctly determined the
McDermeds filed their Extension Motions late and did not abuse its discretion.6
* * *
6 The McDermeds argue that our decision in Rimbert v. Eli Lilly & Co., 647
F.3d 1247 (10th Cir. 2011), shows that the Daubert motions were dispositive. But
that case originated in the District of New Mexico. District of Kansas Rule 6.1
Outcome: We affirm the district court’s denial of the McDermeds’ Rule 59(e) motion.