Estate of Betty Lou McDermed v. Ford Motor Company

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* This order and judgment is not binding precedent, except under the doctrines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.

FILED

United States Court of Appeals

Tenth Circuit

February 9, 2018

Elisabeth A. Shumaker

Clerk of Court

2

(“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.

I. BACKGROUND

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).

3

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

excusable:

(1) the danger of prejudice to the opposing party;

(2) the length of the delay and its potential impact on judicial

proceedings;

(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.

4

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

5

*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.

II. DISCUSSION

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.

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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)

(quotations omitted).

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).

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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.

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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.

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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. . . .

Id. 6.1(d).

D. Analysis

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

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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

motion” argument.

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

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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

controls here.

We affirm the district court’s denial of the McDermeds’ Rule 59(e) motion.