United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon plaintiff Derrick Ray
Smith's Motion to Alter or Amend Judgment Pursuant to
Rule 59(e). (Docket No. 104). Defendants have not responded
to the motion, and the time for doing so has passed. The
motion will be denied.
October 12, 2016, this Court dismissed plaintiff's cause
of action under Federal Rule of Procedure Rule 41(b) due to
plaintiff's failure to prosecute his case. (Docket No.
102). Specifically, the Court determined that plaintiff
refused to appear for his own deposition despite defense
counsel and a court reporter appearing at his place of
incarceration at the pre-determined time. The Court concluded
that plaintiff's failure to attend his own deposition was
in contravention of this Court's Case Management Order,
which justified sanctions pursuant to Rule 37 of the Federal
Rules of Civil Procedure. The Court also noted that, although
plaintiff had filed numerous documents with the Court in the
preceding month, he had not responded in any way to the
defendants' motion to dismiss.
instant motion, filed October 24, 2016, plaintiff argues that
defendants' notice of deposition violated Rule 30(b) and
this Court's Case Management Order because both required
“reasonable notice” of the deposition, and
defendants gave him only twelve “working”
days' notice. (Docket No. 104 at 2). Citing no authority,
plaintiff contends that thirty days' notice is required
to be deemed “reasonable”, absent a showing of a
need for haste. (Id.). Plaintiff also suggests that
defendants lacked leave of Court to take his deposition.
Plaintiff's arguments are unavailing.
Rule of Civil Procedure 59(e) motions “serve the
limited function of correcting manifest errors of law or fact
or to present newly discovered evidence.” United
States v. Metropolitan St. Louis Sewer Dist., 440 F.3d
930, 933 (8th Cir. 2006) (quoting Innovative Home Health
Care, Inc. v. P.T.-O.T. Associates of the Black Hills,
141 F.3d 1284, 1286 (8th Cir. 1998)). Such motions do not
allow a party to re-litigate matters previously resolved by
the court or to raise arguments or present evidence that
could have been presented prior to the entry of judgment,
unless good cause is shown for such failure. Holder v.
United States, 721 F.3d 979, 986 (8th Cir. 2013);
Innovative Home Health Care, 141 F.3d at 1286.
review of the instant motion, the Court concludes that it
fails to point to any manifest errors of law or fact, or any
newly discovered evidence. Instead, the motion can be said to
merely revisit old arguments, or attempt to raise new ones
without providing good cause for the failure to raise them
prior to the entry of judgment. Plaintiff is therefore not
entitled to relief under Rule 59(e). See id.
arguments plaintiff raises would be unavailing even if
plaintiff had raised them at an appropriate time. Plaintiff
contends that defendants' notice of deposition was not
“reasonable” because it was not given thirty days
prior to deposition. While it is true that a party must give
“reasonable written notice” of the taking of a
deposition, there is no authority for the conclusion that
notice of fewer than thirty days is per se unreasonable. In
fact, the determination of whether the notice given can be
deemed “reasonable” is highly fact-specific, and
depends upon the circumstances of the particular case. Notice
of a single day has been approved in some cases, notice of
two days was deemed unreasonable in others absent some
showing of a need for haste, and notice of six or eight days
has been upheld. See 8A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 2111 at p. 519-20 (3d ed.); Pearl v. Keystone
Consol. Industries, Inc., 884 F.2d 1047 (7th Cir. 1989)
(six days' notice was reasonable); United States v.
Acambaro Mexican Restaurants, Inc., No. 08-50009, 2008
WL 509467, at *1 (W.D. Ark. Feb. 22, 2008) (seven days'
notice was reasonable), United States v. Reyes, No.
08-50007, 2008 WL 509546 (W.D. Ark. Feb. 22, 2008) (same);
Jones v. United States, 720 F.Supp. 355, 366
(S.D.N.Y. 1989) (eight days' notice was reasonable).
case at bar, plaintiff contends that defendants mailed the
notice of deposition on August 12, 2016, that he received it
on August 15, 2016, and the deposition was scheduled for
August 30, 2016. (Docket No. 104 at 2). The deposition was
scheduled to be held at the institution at which plaintiff
was incarcerated, necessitating no travel or special
arrangements on his part. Taking plaintiff's contention
regarding his receipt of the notice as true, he received it
fifteen days before the deposition was scheduled to be held.
While plaintiff contends that he needed time to prepare, he
does not explain, nor is it apparent to the Court, why
fifteen days' notice was insufficient preparation time,
or how a longer period of time would have rendered him able
to sufficiently prepare. Finally, this Court's Case
Management Order expressly granted defendants leave of court
to depose plaintiff, (Docket No. 56, ¶ 5), defeating
plaintiff's argument that defendants lacked such leave.
The Court therefore concludes that plaintiff's motion
should be denied.
IT IS HEREBY ORDERED that plaintiffs Motion
to Alter or Amend Judgment Pursuant to Rule 59(e) (Docket No.
104) is DENIED. Dated this 29th day of
 On October 31, 2016, plaintiff filed a
Notice of Appeal. Normally, the filing of a notice of appeal
divests the district court of control over the case.
Liddell by Liddell v. Board of Educ. of City of St.
Louis, 73 F.3d 819, 822 (8th Cir. 1996). In the context
of a Rule 60(b) motion (which is similar to a Rule 59(e)
motion as is pending here), a district court may consider the
motion “on the merits and deny it even if an appeal is
already pending in this court” but a remand of the case