U.S. Court of Appeals for the Eighth Circuit, 1993

In re Kye Trout, Jr. Kye Trout, Jr. v. Mary S. Trout

U.S. Court of Appeals for the Eighth Circuit · Decided February 2, 1993 · Gibson, Loken, Hansen

984 F.2d 977; 1993 U.S. App. LEXIS 1493; 1993 WL 19008 (Federal Reporter, Second Series)

Counsel

Phillip D. Armstrong, Minot, ND, argued, for appellant., Lawrence A. Dopson, Bismarck, ND, argued, for appellee.

Cases that cite this one

6 later published cases cite this decision.

Tolerson v. Auburn Steel Co., Inc. (United States District Court for the Eastern District of Arkansas 1997)
Symens v. Smithkline Beecham Corp. (District Court, D. South Dakota 1997)
In re Tri-State Ethanol Co., LLC (District Court, D. South Dakota 2007)
In re Appeals from Orders of the Bankruptcy Court (United States Bankruptcy Court, D. South Dakota 2007)
Stanton v. State Farm Fire and Cas. Co., Inc. (District Court, D. South Dakota 2001)
In re Montgomery (United States Bankruptcy Court, E.D. Arkansas 1993)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM.

We dismiss this appeal as premature pursuant to Federal Rule of Appellate Procedure 4(a)(4).

On November 2, 1992, the district court affirmed the bankruptcy court’s decision to exclude certain property from the bankruptcy estate of Kye Trout, Jr. On November 17, 1992, Phillip D. Armstrong, trustee of the bankruptcy estate, filed a motion in the district court entitled “Motion for Reconsideration.” On December 1, 1992, the trustee appealed the district court’s November 2 order. The district court had not yet ruled on the trustee’s Motion for Reconsideration at the time the trustee filed the notice of appeal.

The trustee cites no federal rule of civil or appellate procedure in his Motion for Reconsideration, “leavpng] the characterization of the motion to the court’s somewhat enlightened guess, subject to the hazards of ... losing the opportunity to present the merits underlying the motion to [this] court because of delay.” Sanders v. Clemco Industries, 862 F.2d 161, 168 (8th Cir. 1988) (footnote omitted). Because the trustee filed the motion within ten days, excluding intervening weekends and holidays, of the filing date of the district court’s order, we nevertheless construe the self-styled Motion for Reconsideration as a motion filed pursuant to Federal Rule of Civil Procedure 59(e). Accordingly, we dismiss the appeal as premature.

While we were able to construe the trustee’s motion as one that comports with the Federal Rules of Civil Procedure in this particular situation, we warn counsel of the danger of failing to follow and to cite the appropriate procedural rule in the first instance, and we repeat the following admonition:

Aggrieved parties in bench trials should not file motions labeled “motion for reconsideration” in federal district court. The Federal Rules of Civil Procedure do not provide for such a motion. Instead, the motion should be properly des *979 ignated under the rule authorizing the motion, such as Rule 52 or 59.

Sanders, 862 F.2d at 170 (emphasis added).

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