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Nuyen v. Luna10/13/2005
b) motion." Id. at 805. (Citation omitted.) A motion that is "proper under either rule" will ordinarily be treated as a Rule 59 (e) motion, if timely filed. Id. We conclude in this case, however, that Nuyen's pro se motion, though timely filed, was not a proper Rule 59 (e) motion.
This court addressed the difference between a Rule 59 (e) motion and a Rule 60 (b) motion in Wallace, supra note 3. We stated that our cases described the difference between Rule 59 (e) and Rule 60 (b) motions in terms of whether, for the first time, the movant is requesting consideration of additional circumstances; if so, the motion is properly considered under Rule 60 (b), but if the 9 movant is seeking relief from the adverse consequences of the original order on the basis of error of law, the motion is properly considered under Rule 59 (e).
Id. at 804 (citing Coleman v. Lee Washington Hauling Co., 388 A.2d 44, 46 & n.5 (D.C. 1978) (citing 9 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE 204.12 at 953); Cohen v. Holmes, 106 A.2d 147, 148 (D.C. 1954)). Nuyen's pro se motion did not base his claim for relief on an error of law; he alleged an additional circumstance not available to the trial court when it granted the default judgment. That circumstance was Nuyen's failure to receive notice of the pretrial conference. Nuyen thus claimed, in effect, "excusable neglect" in failing to attend the conference. This is a ground for relief under Rule 60 (b)(1), and his pro se motion properly should be treated as a motion under that rule. See United States v. $23,000 in U.S. Currency, supra, 356 F.3d at 164 & n.9 ("Rule 59 (e) 'does not provide a vehicle for a party to undo its own procedural failures . . . .'") (quoting Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997)). See also 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE 60.03 at 60-25 (3d ed. 2005) (". . . ven if filed within the time limit for a motion under FED. R. CIV. P. 59 (e), a motion seeking relief on grounds of excusable neglect will be treated as a Rule 60 (b)(l) motion, since Rule 59 (e) does not provide a vehicle for a party to undo its own procedural failures.").
The trial court extended the time for Nuyen to amend his motion, and his counsel subsequently filed a supplemental motion, adding as an additional ground for relief the argument that res judicata barred a judgment against Nuyen. In this argument, Nuyen's counsel did claim an error of law, an error cognizable under Rule 59 (e). Had Nuyen's pro se motion been a Rule 59 (e) motion, we would face the question of whether the amended motion, filed under an extension granted by the trial court, could be treated as part of a timely filed Rule 59 (e) motion. Since we hold that Nuyen's motion was not a Rule 59 (e) motion, but rather a Rule 60 (b)(l) motion, we need not address this question. The supplemental motion filed by Nuyen's counsel was a supplement to a Rule 60 (b)(l), not a Rule 59 (e), motion. Nuyen may therefore appeal only from the denial of his Rule 60 (b)(l) motion; he may not challenge the default judgment itself.
B. Appeal from the Denial of the Motion to Vacate
Nuyen argues that the trial court abused its discretion in denying his motion to vacate without stating its reasons. We agree.
Rule 60 (b) states in relevant part:
On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment . . . for the following reasons: (l) mistake, inadvertence, surprise or excusable neglect; . . . .
In considering whether to set aside a default judgment pursuant to Rule 60 (b), the trial court must consider whether the movant (1) had actual notice of the proceedin
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