Successive 60(b) Motions Not Allowed

The circuit court denied a plaintiff’s Rule 60(b) motion. The plaintiff then filed a second, “identical” Rule 60(b) motion. The circuit court correctly recognized that it had no jurisdiction to entertain the second motion. Barnes v. Alternative Capital Source, LLC, No. 2081103 (Ala. Civ. App. Jan. 29, 2010).

This concise opinion presents a string of postjudgment filing dates. Its upshot is that successive postjudgment motions under Rule 60(b), by the same party on the same grounds, are not allowed.  This is the oft-repeated rule that “motions to reconsider” Rule 60(b) motions are not recognized; so that once a trial court denies a 60(b) plea, it cannot hear a second one by the same party. The circuit court in this case was affirmed for deciding, under Rule 60(b)(4), that it lacked jurisdiction to hear a repeat 60(b) motion.

1

Plaintiff Barnes appealed from the district court to the circuit court, but did not include an appellate filing fee, or apply to have the fee waived. “According to Barnes, the clerk failed to inform her that she needed to pay a filing fee or to apply for a hardship waiver.” Three months after the district court judgment, Barnes filed for a waiver, and the clerk filed her notice of appeal. The circuit court dismissed the appeal as untimely.

Then, on November 10, 2008, Barnes moved the circuit court under Rule 60(b) to vacate its dismissal. She argued that the trial court should have treated her appeal as timely even without a fee or waiver application. The circuit court denied this motion.

On March 9, 2009, after retaining a lawyer, Barnes filed another Rule 60(b) motion to set aside the dismissal. She advanced the same arguments that she had made in her November 2008 motion. This time, however, the circuit court granted her motion and set aside its dismissal of her appeal.

2

Defendant ACS now filed its own motion. Under Rule 60(b)(4), ACS argued that the circuit court had lost jurisdiction to reinstate the appeal. The circuit court agreed. Reverting to its first disposition, the court vacated its reinstatement, and dismissed the case. Barnes then timely appealed to the Alabama Supreme Court.

3

The state’s high court affirmed the 60(b)(4) decision. First, the appellate court explained that it could not address Barnes’s underlying argument that her appeal should not have been dismissed in the first place; i.e., that the circuit court should have accepted her appeal without a fee or hardship waiver. That issue was not before the appellate court. Appellate review was confined to the last decision under Rule 60(b)(4). The only issue, then, was whether the circuit court had correctly granted the 60(b)(4) motion; that is, whether it had rightly determined that it lacked jurisdiction to hear Barnes’s second Rule 60(b) motion.

On this question the circuit court was correct. The supreme court explained:

[A]fter a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to “reconsider” or otherwise review its order denying the Rule 60(b) motion. In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion.

     Having originally denied Barnes’s first Rule 60(b) motion . . . , the [circuit] court lost jurisdiction to rule on any successive Rule 60(b) motions based on the same grounds.

(Citations and quotations omitted) (emphasis in original). The circuit court was therefore affirmed.