NOTES TO RULE 59
HISTORY: (Amended Mar. 19, 1948; July 1, 1966; Dec. 1, 1995)
Notes of Advisory Committee on Rules.
This rule represents an amalgamation of the petition for rehearing of former Equity Rule 69 (Petition for Rehearing) and the motion for new trial of USC, Title 28, formerly § 391 (now § 2111) (New trials; harmless error), made in the light of the experience and provision of the code States. Compare Calif Code Civ Proc (Deering, 1937) §§ 656--663a, USC, Title 28, formerly § 391 (now § 2111) (New trials; harmless error) is thus substantially continued in this rule. USC, Title 28, former § 840 (Executions; stay on conditions) is modified insofar as it contains time provisions inconsistent with Subdivision (b). For the effect of the motion for new trial upon the time for taking an appeal, see Morse v United States, 270 US 151, 46 S Ct 241, 70 L Ed 518 (1926); Aspen Mining and Smelting Co. v Billings, 150 US 31, 14 S Ct 4, 37 L Ed 986 (1893).
For partial new trials which are permissible under Subdivision (a), see Gasoline Products Co. Inc. v Champlin Refining Co. 283 US 494, 51 S Ct 513, 75 L Ed 1188 (1931); Schuerholz v Roach, 58 F2d 32 (CCA 4th, 1932); Simmons v Fish, 210 Mass 563, 97 NE 102, Ann Cas 1912D, 588 (1912) (sustaining and recommending the practice and citing Federal cases and cases in accord from about sixteen States and contra from three States). The procedure in several States provides specifically for partial new trials. Ariz Rev Code Ann (Struckmeyer, 1928) § 3852; Calif Code Civ Proc (Deering, 1937) §§ 657, 662; Ill Rev Stat (1937) ch 110, § 216 (par (f)); Md Ann Code (Bagby, 1924) Art 5, §§ 25, 26; Mich Court Rules Ann (Searl, 1933) Rule 47, § 2; Miss Sup Ct Rule 12, 161 Miss 903, 905 (1931); NJ Sup Ct Rules 131, 132, 147, 2 NJ Misc 1197, 1246--1251, 1255 (1924); 2 ND Comp Laws Ann (1913), § 7844, as amended by ND Laws 1927, ch 214.
Notes of Advisory Committee on 1948 Amendments to Rules.
Subdivision (b).
With the time for appeal to a circuit court of appeals reduced in general to 30 days by the proposed amendment of Rule 73(a), the utility of the original "except" clause, which permits a motion for a new trial on the ground of newly discovered evidence to be made before the expiration of the time for appeal, would have been seriously restricted. It was thought advisable, therefore, to take care of this matter in another way. By amendment of Rule 60(b), newly discovered evidence is made the basis for relief from a judgment, and the maximum time limit has been extended to one year. Accordingly the amendment of Rule 59(b) eliminates the "except" clause and its specific treatment of newly discovered evidence as a ground for a motion for new trial. This ground remains, however, as a basis for a motion for new trial served not later than 10 days after the entry of judgment. See also Rule 60(b).
As to the effect of a motion under subdivision (b) upon the running of appeal time, see amended Rule 73(a) and Note.
Subdivision (e).
This subdivision has been added to care for a situation such as that arising in Boaz v Mutual Life Ins. Co. of New York, CCA 8th, 1944, 146 F2d 321, and makes clear that the district court possesses the power asserted in that case to alter or amend a judgment after its entry. The subdivision deals only with alteration or amendment of the original judgment in a case and does not relate to a judgment upon motion as provided in Rule 50(b). As to the effect of a motion under subdivision (e) upon the running of appeal time, see amended Rule 73(a) and Note.
The title of Rule 59 has been expanded to indicate the inclusion of this subdivision.
Notes of Advisory Committee on 1966 Amendments to Rules.
By narrow interpretation of Rule 59(b) and (d), it has been held that the trial court is without power to grant a motion for a new trial, timely served, by an order made more than 10 days after the entry of judgment, based upon a ground not stated in the motion but perceived and relied on by the trial court sua sponte. Freid v McGrath, 133 F2d 350 (DC Cir 1942); National Farmers Union Auto. & Cas. Co. v Wood, 207 F2d 659 (10th Cir 1953); Bailey v Slentz, 189 F2d 406 (10th Cir 1951); Marshall's U.S. Auto Supply, Inc. v Cashman, 111 F2d 140 (10th Cir 1940), cert den 311 US 667, 85 L Ed 428, 61 S Ct 26 (1940); but see Steinberg v Indemnity Ins. Co. 36 FRD 253 (ED La 1964).
The result is undesirable. Just as the court has power under Rule 59(d) to grant a new trial of its own initiative within the 10 days, so it should have power, when an effective new trial motion has been made and is pending, to decide it on grounds thought meritorious by the court although not advanced in the motion. The second sentence added by amendment to Rule 59(d) confirms the court's power in the latter situation, with provision that the parties be afforded a hearing before the power is exercised. See 6 Moore's Federal Practice, par 59.09 [2] (2d ed. 1953).
In considering whether a given ground has or has not been advanced in the motion made by the party, it should be borne in mind that the particularity called for in stating the grounds for a new trial motion is the same as that required for all motions by Rule 7(b)(1). The latter rule does not require ritualistic detail but rather a fair indication to court and counsel of the substance of the grounds relied on. See Lebeck v William A. Jarvis Co., 250 F2d 285 (3d Cir 1957); Tsai v Rosenthal, 297 F2d 614 (8th Cir 1961); General Motors Corp. v Perry, 303 F2d 544 (7th Cir 1962); cf. Grimm v California Spray-Chemical Corp., 264 F2d 145 (9th Cir 1959); Cooper v Midwest Feed Products Co., 271 F2d 177 (8th Cir 1959).
Notes of Advisory Committee on 1995 Amendments to Rules
The only change, other than stylistic, intended by this revision is to add explicit time limits for filing motions for a new trial, motions to alter or amend a judgment, and affidavits opposing a new trial motion. Previously, there was an inconsistency in the wording of Rules 50, 52, and 59 with respect to whether certain post-judgment motions had to be filed, or merely served, during the prescribed period. This inconsistency caused special problems when motions for a new trial were joined with other post-judgment motions. These motions affect the finality of the judgment, a matter often of importance to third persons as well as the parties and the court. The Committee believes that each of these rules should be revised to require filing before end of the 10-day period. The phrase "no later than" is used -- rather than "within" -- to include post-judgment motions that sometimes are filed before actual entry of the judgment by the clerk. It should be noted that under Rule 5 the motions when filed are to contain a certificate of service on other parties. It also should be noted that under Rule 6(a) Saturdays, Sundays, and legal holidays are excluded in measuring the 10-day period, but that Bankruptcy Rule 9006(a) excludes intermediate Saturdays, Sundays, and legal holidays only in computing period less than 8 days.