FILED
                                                          United States Court of
                                 PUBLISH                      Appeals
                                                              Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                               April 16, 2019
                      FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                    _________________________________        Clerk of Court

TONY NELSON,

       Plaintiff - Appellant,

v.                                               No. 17-2199

CITY OF ALBUQUERQUE, a
political subdivision of the State of
New Mexico; R.T. JOHNSTON, an
Officer of the Albuquerque Police
Department, individually; D.
HUGHS, an Officer of the
Albuquerque Police Department,
individually; A. LIMON, an Officer
of the Albuquerque Police
Department, individually; S.
WEIMERSKIRCH, an Officer of the
Albuquerque Police Department,
individually,

       Defendants - Appellees,

and

BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF BERNALILLO, a
political subdivision of the State of
New Mexico; JOHN AND JANE
DOES, Officers of the Albuquerque
Police Department, individually;
DERRICK WULFF, Detective of the
Albuquerque Police Department, in
his individual capacity as a state
actor of the City of Albuquerque; J.
SATHER, Sergeant of the
Albuquerque Police Department, in
his individual capacity as a state
actor of the City of Albuquerque,

        Defendants.
                      _________________________________

              Appeal from the United States District Court
                     for the District of New Mexico
                  (D.C. No. 1:10-CV-00553-JB-DJS)
                   _________________________________

Ryan J. Villa, The Law Office of Ryan J. Villa, Albuquerque, New Mexico,
for the Plaintiff-Appellant.

David A. Roman, Robles, Rael & Anaya, P.C., Albuquerque, New Mexico,
for the Defendants-Appellees.
                    _________________________________

Before BRISCOE, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
               _________________________________

     This appeal grew out of a dilemma for the district court: How was it

to resolve the tension between the desire to correct what it saw as a prior

error and constraints on the court’s power to rule on repetitive motions?

The dilemma arose from a second motion to alter or amend a civil

judgment under Federal Rule of Civil Procedure 59(e).

     The defendants ultimately filed two motions based on this rule, but

they were decided by different judges. After the first judge denied the first

motion, he retired and the court reassigned the case to another judge. The

defendants then filed their second motion, reurging or elaborating on what


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they had argued in their prior motion. This time, the second judge granted

the motion. But the motion as presented was an improper Rule 59(e)

motion because it had simply rehashed arguments from the first motion.

Because the motion was improper, the district court erred in granting it.

We therefore reverse.

1.   The district court denies the defendants’ first motion under Rule
     59(e).

     The case involved excessive force claims brought by Mr. Tony

Nelson. The case went to trial, and the jury returned a verdict for the

defendants. Mr. Nelson then moved for judgment as a matter of law under

Rule 50(b). The district court granted this motion, concluding that no

reasonable jury could find for the defendants.

     The defendants responded with a motion to alter or amend the

judgment under Rule 59(e), arguing that (1) the trial evidence supported a

defense verdict and (2) the officers were entitled to qualified immunity.

The district court rejected both arguments, concluding that the defendants

were not entitled to relief under Rule 59(e). So the court entered judgment

for Mr. Nelson.

     Following the entry of this judgment, the defendants moved for

judgment as a matter of law under Rule 50(b), seeking reinstatement of the

verdict. The defendants again argued that (1) the verdict was supported by




                                      3
sufficient evidence and (2) the officers were entitled to qualified

immunity.

2.    The case is reassigned, and the newly assigned judge grants the
      defendants’ second motion under Rule 59(e).

      Before the district court issued a decision, the case was reassigned to

another judge. This judge denied the defendants’ Rule 50(b) motion based

on two conclusions:

      1.    Rule 50(b) did not allow the court to undo the grant of
            judgment to Mr. Nelson.

      2.    The officers had failed to preserve their arguments for qualified
            immunity.

But the judge also construed the defendants’ Rule 50(b) motion as a second

Rule 59(e) motion to alter or amend the judgment. With this construction,

the judge granted the motion, concluding both that

           the previous judge had clearly erred in granting judgment as a
            matter of law to Mr. Nelson and

           the officers were entitled to qualified immunity.

Given these conclusions, the court amended the judgment to deny relief to

Mr. Nelson, who appeals the grant of the defendants’ second Rule 59(e)

motion.

3.    The defendants’ postjudgment motion was properly construed as
      a second Rule 59(e) motion.

      The parties do not question characterization of the first motion as a

Rule 59(e) motion. The defendants later filed another motion, this time


                                      4
invoking Rule 50(b). But the court recharacterized the motion as one based

on Rule 59(e), and all parties agree with this recharacterization (as we do).

      “[I]n determining whether a motion is brought under Rule 59, we

look beyond the form of the motion to the substance of the relief

requested.” Hannon v. Maschner, 

, 1144 n.2 (10th Cir.

1992). Despite the label, a motion constitutes a Rule 59(e) motion if it

“requests a substantive change in the district court’s judgment or otherwise

questions its substantive correctness.” Yost v. Stout, 

, 1243

(10th Cir. 2010).

      Although the defendants labeled their motion as one under Rule

50(b), the court correctly construed the motion as one based on Rule 59(e).

In the motion, the defendants urged the court to vacate its earlier grant of

judgment to Mr. Nelson. As the court recognized, this was not a true

request for Rule 50(b) relief. Instead, the defendants were questioning the

correctness of the order granting judgment to Mr. Nelson. This was a

classic argument to alter or amend the judgment. See 

. The motion thus constituted a second motion under Rule 59(e).

4.    The court erred in granting the defendants’ second Rule 59(e)
      motion.

      We review rulings on Rule 59(e) motions for an abuse of discretion.

Elm Ridge Expl. Co. v. Engle, 

, 1216 (10th Cir. 2013). A

court abuses its discretion when basing its decision on an erroneous legal


                                      5
conclusion. Hayes Family Tr. v. State Farm Fire & Cas. Co., 

,

1005 (10th Cir. 2017). Here the court abused its discretion by committing a

legal error when granting the defendants’ second Rule 59(e) motion. In this

motion, the defendants merely reurged arguments that had already been

presented in the first Rule 59(e) motion.

      Rule 59(e) motions may be granted when “the court has

misapprehended the facts, a party’s position, or the controlling law.”

Servants of the Paraclete v. Does, 

, 1012 (10th Cir. 2000).

But once the district court enters judgment, the public gains a strong

interest in protecting the finality of judgments. See Sanchez-Llamas v.

Oregon, 

, 356 (2006) (discussing the “important interest in

the finality of judgments”). This interest in finality becomes even stronger

when a district court has previously denied relief under Rule 59(e). See In

re Strangel, 

, 859 (5th Cir. 1995) (“[T]he interest of finality

requires that the parties generally get only one bite at the Rule 59(e) apple

for the purpose of tolling the time for bringing an appeal.”).

      Given the strength of this interest in finality, we have restricted

district courts’ discretion when ruling on motions based on Rule 59(e). For

example, we held in Servants of the Paraclete that Rule 59(e) motions are

“not appropriate to revisit issues already addressed or advance arguments

that could have been raised in prior 

. The

United States Supreme Court also stated in Exxon Shipping Co. v. Baker

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that “Rule 59(e) permits a court to alter or amend a judgment, but it ‘may

not be used to relitigate old matters, or to raise arguments or present

evidence that could have been raised prior to the entry of judgment.’” 

, 485 n.5 (2008) (quoting 11 C. Wright & A. Miller, Federal

Practice and Procedure § 2810.1, pp. 127–28 (2d ed. 1995)). 1

      Given this guidance from Servants of the Paraclete and Exxon

Shipping, we consider the defendants’ two arguments in their second Rule

59(e) motion:

      1.    Mr. Nelson was not entitled to judgment under Rule 50(b).

      2.    The officers were entitled to qualified immunity.

These were not new arguments: The first judge had rejected the same

arguments when the defendants presented their first Rule 59(e) motion. 2


1
      We have allowed use of Rule 59(e) to challenge an earlier order
confirming an appraisal award. Hayes Family Tr. v. State Farm Fire &
Cas. Co., 

, 1005 (10th Cir. 2017). In doing so, we stated:
“Certainly a motion under Rule 59(e) allows a party to reargue previously
articulated positions to correct clear legal error.” Hayes Family 

. But there we were not addressing a second Rule 59(e)
motion. Here the defendants didn’t challenge a ruling on a motion filed
under some other procedural rule; the defendants instead rehashed what
they had argued in their prior Rule 59(e) motion.
2
       The reassignment of judges does not affect the district court’s power
to act because the successor judge can reconsider prior rulings only if the
previous judge could have done so. See U.S. Gypsum Co. v. Schiavo Bros.,

, 176 (3d Cir. 1981) (stating that a successor judge can
reconsider legal issues “to the same extent that his or her predecessor
could have”); Abshire v. Seacoast Prods., Inc., 

, 837–38 (5th
Cir. 1982) (concluding that a “successor judge has the same discretion as

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Because parties cannot invoke Rule 59(e) to reurge or elaborate on

arguments already decided in earlier Rule 59(e) proceedings, the

defendants’ second Rule 59(e) motion did not supply a proper ground for

relief.

      The district court acknowledged that Servants of the Paraclete might

prohibit a party from filing a second Rule 59(e) motion that merely

rehashed arguments from a prior Rule 59(e) motion. But the court

concluded that the opinion did not affect a district court’s ability to grant

Rule 59(e) relief. We disagree. In our view, Servants of the Paraclete

prevented the district court from granting an improper motion under Rule

59(e). Thus, the district court abused its discretion by committing an error

of law.

5.    Our disposition leaves three issues unanswered.

      In concluding that the district court erred, we leave three issues

unresolved: (1) whether the district court could have granted relief by

ruling sua sponte, (2) whether relief sought in a repetitive Rule 59(e)




the first judge to reconsider” an earlier order); Exxon Corp. v. United
States, 

, 878 (Fed. Cir. 1991) (“A successor judge steps into
the shoes of his or her predecessor, and is thus bound by the same rulings
and given the same freedom, as the first judge.”).




                                       8
motion might otherwise be granted through Rule 60, and (3) whether Rule

59(e) can be used to challenge a judgment awarded under Rule 50.

      A.    Whether the district court can act sua sponte to grant relief
            under Rule 59(e)

      Rather than grant relief sua sponte, the district court ruled by

granting the defendants’ motion. We thus need not consider whether a

district court can grant Rule 59(e) relief by acting sua sponte. And even if

we assume that a court could act sua sponte under Rule 59(e), we need not

consider whether sua sponte relief would be appropriate in cases like ours,

where Rule 59(e) had already been invoked in an earlier motion. See

United States v. Williams, 

, 1070 (10th Cir. 2015)

(recognizing that even though a district court could vacate a conviction sua

sponte based on a fraud on the court, the statutory restrictions on a second

or successive motion to vacate the sentence applied because the district

court had granted the defendant’s motion rather than act sua sponte).

      Only one circuit has addressed a district court’s power to act sua

sponte by granting relief under Rule 59(e): the Eleventh Circuit. Burnam v.

Amoco Container Co., 

, 1232 (11th Cir. 1984) (per curiam).

That circuit allows the district court to act sua sponte within the period for

filing a motion to alter or amend the judgment. 

has not

weighed in on the court’s power to act sua sponte under Rule 59(e). Cf.




                                      9
Marshall v. Shalala, 

, 454 (10th Cir. 1993) (declining to decide

whether to allow the district court to act sua sponte under Rule 59(e)).

      Even under the Eleventh Circuit’s approach, however, the district

court did not act within the deadline for a motion to alter or amend the

judgment. To act sua sponte, the court had to rule within 28 days of the

judgment for Mr. Nelson. See Fed. R. Civ. P. 59(e) (2012).

      Here the court did not rule within this 28-day period. The judgment

for Mr. Nelson was entered in 2012. In 2013, the district court issued an

order summarily granting in part and denying in part the defendants’

motion under Rule 50(b) for judgment as a matter of law. In the order, the

district court stated that it would later issue an explanatory opinion. The

district court did not issue its opinion until 2017, long after the 28-day

period had ended. In that opinion, the district court stated for the first time

that it was granting relief under Rule 59(e) rather than Rule 50(b). So even

under the Eleventh Circuit’s approach, the district court’s ruling could not

be upheld as a proper exercise of authority to act sua sponte.

      Given the nature and timing of the ruling on the second Rule 59(e)

motion, we need not decide whether the court could have granted relief to

the defendants by acting sua sponte.

      B.    Whether relief might be permissible under Rule 60

      We also need not decide whether relief sought in a repetitive Rule

59(e) motion might be granted through Rule 60. For instance, if a litigant

                                       10
sought to correct a clerical error or remedy a fraud on the court in a

repetitive Rule 59(e) motion, a court might correct the error under Rule

60(a) or Rule 60(d). See Fed. R. Civ. P. 60(a) (clerical errors may be

corrected sua sponte before an appeal is filed); United States v. Buck, 

, 1341–42 (10th Cir. 2002) (permitting relief to remedy a fraud

on the court). But in this appeal, the defendants have not raised the

possibility of relief under Rule 60. So we need not address whether a court

can use Rule 60 to grant relief after the filing of a repetitive motion based

on Rule 59(e).

      C.    Whether Rule 59(e) can be used to challenge a judgment
            that had been based on Rule 50

      Nor do we consider whether it is appropriate to use Rule 59(e) to

challenge a judgment awarded under Rule 50. The advisory committee

notes suggest that Rule 59(e) cannot be used to challenge a judgment

awarded under Rule 50. See Fed. R. Civ. P. 59(e) advisory committee’s

notes to 1946 amendment (stating that Rule 59(e) “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)”). But Mr.

Nelson did not adequately argue that the court had erred in allowing use of

Rule 59(e) to modify a judgment that had been based on Rule 50(b). In his

opening brief, Mr. Nelson merely provided the text of the advisory note

and stated: “For this reason it may have been error to grant Defendants’


                                      11
Rule 59(e) motion.” Appellant’s Opening Br. at 29. Mr. Nelson waived this

argument by failing to adequately develop it. See Fuerschbach v. Sw.

Airlines Co., 

, 1209–10 (10th Cir. 2006).

6.   Conclusion

     The defendants filed a second Rule 59(e) motion that merely reurged

arguments already made in a previous Rule 59(e) motion. The second

motion was improper, and the district court erred by granting the improper

motion. We thus reverse the grant of the defendants’ second Rule 59(e)

motion and remand with instructions to vacate the judgment and reinstate

the prior judgment for Mr. Nelson.




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