![]() The most powerful arguments Kemp presents rely on the other provisions of Rule 60(b). It would be strange for the parallel term “mistake” broadly to cover judicial errors in the same series. Similarly, “inadvertence, surprise, or excusable neglect” sound like mistakes by the party, not by the court. Second, the other three items in 60(b)(1) (“inadvertence, surprise, or excusable neglect”) plainly describe factual rather than legal errors, which suggests that it would be odd for “mistake” to be read to be so much broader than the other terms. First, the phrase “mistake, inadvertence, surprise, or excusable neglect” was taken verbatim by the rule’s drafters from state laws that applied it to include only factual errors. Two arguments involve the text of 60(b)(1) itself. Kemp makes several structural arguments to counter the government’s reading of “mistake.” The mistake here – a miscalculation of filing deadlines – should come only under 60(b)(6). For example, if a plaintiff does not appear for a court hearing because plaintiff’s counsel misunderstood the date of the hearing, Kemp would treat that as a 60(b)(1) mistake. Kemp reads 60(b)(1) as limited to factual mistakes made by the claimant, rather than legal errors that a court might make. ![]() Kemp, by contrast, contends that such a broad reading of “mistake” makes a hash of the structure of Rule 60(b). That is, to be sure, not an unreasonable reading of the word “mistake.” The government pitches a plain-language argument, contending that the dictionary definition of “mistake” (the first of four terms in 60(b)(1)) includes any and all errors of any kind, whether made by the person seeking relief or by the court. The answer depends on whether 60(b)(1) or 60(b)(6) applies to that subsequent motion. So while all agree that Kemp’s original motion for post-conviction relief under Section 2255 (the federal habeas statute) was timely, the parties dispute whether he filed his subsequentRule 60(b) motion (seeking to correct the district court’s judgment) on time. ![]() Kemp filed his Rule 60(b) motion 21 months after the district court entered its judgment based on the legal error. The distinction is important because motions for post-judgment relief under 60(b)(1) have a one-year deadline, but motions under 60(b)(6) have no firm deadline. The government believes that Kemp’s effort to undo the district court’s error should be analyzed under 60(b)(1). ![]() The last, 60(b)(6), is a catch-all, which permits relief for “any other reason that justifies relief.” The first paragraph, 60(b)(1) allows relief for “mistake, inadvertence, surprise, or excusable neglect.” The second through fifth allow relief for reasons not relevant to Kemp. Rule 60(b) starts by providing that a “court may relieve a party … from a final judgment” for reasons listed in six numbered paragraphs. The question is how Rule 60(b) applies to Kemp’s effort to correct the undisputed error. All agree that Kemp’s motion in fact was timely the court erred when it dismissed that motion. The court, following the advice of the government, calculated the deadline incorrectly and dismissed the motion as untimely. § 2255 asking a federal district court to overturn his federal criminal conviction for drug and firearm offenses. In this case, for example, Dexter Earl Kemp filed a motion under 28 U.S.C. To explain, Rule 60(b) is the place you go in the federal rules if a judgment has been entered against you incorrectly. The case involves a small detail of the Federal Rules of Civil Procedure – the correct pigeonhole in Rule 60(b) for an argument that a judge incorrectly dismissed an earlier proceeding. That’s the debate the parties offer the court Tuesday morning in Kemp v.
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