Reporter’s Notes:

(2013): The 1973 Reporter’s Notes to Rule 59, last paragraph, state: “The significance of a motion under Rule 59(e) is that such a motion stops the appeal clock. If the relief sought does not fit under Rule 59(e) or is made later than 10 days after judgment, it is considered to fall within Rule 60(b), which does not toll the appeal time.” In 2013, however, an amendment to Rule 4(a) of the Massachusetts Rules of Appellate Procedure provided that a Rule 60 motion, if served within ten days after entry of judgment, tolls the time period to claim an appeal. See 2013 Reporter’s Notes to Mass. R. A. P. 4(a).

(1996): With the merger of the District Court rules into the Mass. R. Civ. P., minor differences which had existed between Mass. R. Civ. P. 59 and Dist./Mun. Cts. R. Civ. P. 59 have been eliminated (most of which concerned references to jury trial).

Notes to Rule 59(e) – as amended (1994): (third paragraph from end) A motion under Rule 59(e) (taken with only slight changes from Federal Rule 59(e) ), authorizes the court to alter or amend a judgment provided the motion is served within 10 days of entry of judgment. Since such a motion affects the finality of the judgment, it tolls the time for taking an appeal from the judgment; the time does not begin to ran again until after disposition of the motion. It should be noted that, as in the case of a motion for new trial under Rule 59(b), the motion to alter or amend judgment under Rule 59(e) must be served not later than 10 days after entry of judgment. See Arthur D. Little, Inc. v. East Cambridge Savings Bank, 35 Mass. App. Ct. 734, 743, note 7 (1994), commenting on a prior misstatement in these Reporters’ Notes that a motion under Rule 59(c) must be “filed” within 10 days of entry of judgment. The difference between service and filing should be emphasized. Service is accomplished pursuant to Rule 5(b) by delivery or mail to all parties or their attorneys; the papers “shall be filed with the court either before service or within a reasonable time thereafter.” Rule 5(d). See Albano v. Bonanza International Development Co., 5 Mass. App. Ct. 692 (1977).

(1973): Rule 59(a) allows the court to grant a new trial as to any or all of the parties or as to any or all of the issues. This power applies to both jury and non-jury cases and is entirely discretionary. Yates v. Dann, 11 F.R.D. 386 (D.Del.1951). This provision seeks to limit the issue on retrial to those which the court considers were not properly adjudicated in the first trial. Thus a partial new trial may be granted as to liability alone, if the court considers that the damages have been properly ascertained. Calaf v. Fernandez, 239 F. 795 (1st Cir.1917). Conversely, as in Yates, supra, the new trial is often limited to the issue of damages, if liability has been properly determined.

The partial new trial device may only be used if the issues as to which the new trial is ordered are so distinct and independent from the remainder of the case that they may be separately tried without injustice. If the issues or parties to which the motion is addressed are not severable or are interwoven with the remaining issues, the court may not order a partial retrial. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494 (1931).

In conformity with the spirit of the entire Federal Rules, Rule 59(a) also provides that in non-jury cases “the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law and direct the entry of a new judgment.”

The provisions of Rule 59(a), in most instances, substantially follow former Massachusetts practice. The grounds for a new trial are unchanged.

Rule 59(a) treats two types of cases: (1) actions tried by a jury and (2) actions tried without a jury. In the first classification new trials may be granted for any of the reasons for which new trials have heretofore been granted in actions at law. In the second, new trials may be granted “for any of the reasons for which rehearings have heretofore been granted in suits in equity.” This latter standard applies both to jury-waived actions and actions in which equitable relief is sought.

Rule 59(a) incorporates the remittitur and additur provisions of G.L. c. 231, § 127. While Federal Rule 59(a) does not specifically refer to the remittitur, established federal practice allows it, within the discretion of the trial judge. Neese v. Southern Ry., 350 U.S. 77 (1955). The additur, however, is not allowed in the federal system. Dimick v. Schiedt, 293 U.S. 474 (1934). This distinction is not attributable to any language of Federal Rule 59(a); it is based upon the Supreme Court’s interpretation of the Seventh Amendment. The decision in Dimick does not bind the state courts because the states am not bound by the provisions of the Seventh Amendment, either directly, Pearson v. Yewdall, 95 U.S. 294 (1877), or by reason of its being incorporated into the due process clause of the Fourteenth Amendment, Walker v. Sauvinet, 92 U.S. 90 (1875).

The possibility remains that the additur could be held unconstitutional under Article 15 of the Massachusetts Declaration of Rights. The California Supreme Court held the additur unconstitutional under similar language of the California Constitution, See Dorsey v. Barba, 38 Cal.2d 350, 357 (1952).

The promulgation of Rule 59(a) by the Supreme Judicial Court does not constitute a binding decision that the Massachusetts additur provision is constitutional under Article 15. The promulgation is analogous to an advisory opinion. Advisory opinions are not adjudications by the court and do not fall within the doctrine of stare decisis; thus if the same question arises later in the course of other litigation, the Court is obliged to consider it anew, unaffected by the advisory opinion. Dodge v. Prudential Insurance Company of America, 343 Mass. 375, 379-380 (1961).

The time limit for making a motion under Rule 59(b) is computed from the date of effective entry of judgment under Rule 58. The wording of 59(b), however, allows a motion to be made both before or after the entry of judgment. Patridge v. Presley, 189 F.2d 645 (D.C.Cir. 1951 ); McCulloch Motors Corp. v. Oregon Saw Chain Corp., 245 F.Supp. 851 (S.D.Cal. 1965 ).

Some courts have held, however, that a motion for a new trial made prior to the entry of judgment is to be taken as denied by a subsequent entry of judgment. Mosier v. Federal Reserve Bank of New York, 132 F.2d 710 (2nd Cir.1942); Agostino v. Ellamer Packing Co., 191 F.2d 576 (9th Cir.1951).

Generally, present federal practice allows the motion to be made either before or after entry of judgment. This is evidenced by the fact that the Supreme Court adopted the words “not later than” (rather than the proposed “within”) 10 days after entry of judgment. Furthermore, Rule 59(a) allows the court to open judgment “if one has been entered” (emphasis supplied) in response to a motion by a party.

Except for motions made during the trial or hearing, Rule 7(b) requires that the motion be in writing and state specifically the grounds and the relief or order sought. A motion under Rule 59 which does not meet the requirements of Rule 7(b) will be insufficient and considered a nullity. National Farmers Union Auto & Casualty v. Wood, 207 F.2d 659 (10th Cir.1953); Collins v. Risner, 22 F.R.D. 14 (E.D.Pa. 1958 ). The exception in Rule 7(b) refers to the situation where a motion is made “during the trial or hearing” as, for example, during the actual trial or immediately after pronouncement of the verdict. In such a case, the motion need not be in writing. See Douglas v. Union Carbide Corp., 311 F.2d 182, 185 (4th Cir.1962).

Because a motion under Rule 59(b) affects the finality of judgment and tolls the time for taking an appeal, the 10-day limit may not be enlarged by the court. Rule 6(b). Some authority indicates that the parties themselves can extend the time, Whayne v. Glenn, 114 F. Supp. 784 (W.D.Ky. 1953 ); however, the safer view is that Rule 6(b) bars any such extension. John E. Smith’s Sons Co. v. Lattimer Foundry & Machine Co., 239 F.2d 815 (3rd Cir.1956).

The 10-day period, it should be emphasized, begins to run from the date of effective entry of judgment under Rule 58. This provision applies even though a party has not received notice of the judgment under Rule 77(d) from the clerk or adverse party; or even if the clerk fails to record a correct copy of the judgment as required by Rule 79(b).

A motion under Rule 59 suspends the finality of the judgment and tolls the time for appeal. It is established in federal practice that an amendment may be made to a motion for a new trial. For example, the court can allow a subsequent amendment of the motion to state additional or different grounds. Aleavo v. Jean Jordeau, Inc., 3 F.R.D. 61 (D.N.J. 1942 ). The weight of judicial authority, however, supports the view that such an amendment may not be made after the 10-day period has elapsed. McCloskey v. Kane, 285 F.2d 297 (D.C.Cir. 1960 ); Marks v. Philadelphia Wholesale Drug Co., 125 F.Supp. 369 (E.D.Pa. 1954 ). The court has the power to grant a new trial on its own initiative for any reason not stated in the motion, provided the court acts within the 10-day period.

Rule 59(b) substantially changes former Massachusetts practice. The rule allows a motion for new trial after judgment has been entered, while the practice in Massachusetts was that a new trial may be ordered at any time before judgment. The difference springs from the differing meaning of “judgment”. See Reporters’ Notes to Rule 54.

The 10-day deadline under Rule 59(b) enlarges the former three day period for jury cases. Like Rule 59(b), former Massachusetts practice required that the motion be in writing. By statute and court rule, hearings supported by affidavits on motions for a new trial were allowed in Massachusetts, G.L. c. 231, § 127; Super. Ct. Rules 46 and 55. The state rules also provided that unless an application for hearing was made within 10 days of filing of the motion, the trial judge could act upon the motion without a hearing.

Under Rule 59(c), when a motion is supported by affidavits, the latter must be filed with the motion, Former practice allowed the affidavits to be filed at the hearing.

Rule 59(d), taken unchanged from Federal Rule 59(d), substantially departs from former Massachusetts practice. It allows the court, on its own initiative, to order a new trim “for any reason for which it might have granted a new trial on motion of a party.” The second part of Rule 59(d) allows the trial judge to grant a motion for a new trial for a reason not stated in the motion. Under prior law, in jury cases, a new trial could be ordered only on motion and only for the reasons set forth in the motion.

Rule 59(d) continues the former Massachusetts practice of allowing the parties a hearing in any action proposed to be taken sua sponte by the trial judge, and continues to require that the court specify the grounds for whatever action it takes.

A motion under Rule 59(e) (taken with only slight changes from Federal Rule 59(e) ), authorizes the court to alter or amend a judgment provided the motion is filed within 10 days of entry of judgment. Since such a motion affects the finality of the judgment, it tolls the time for taking an appeal from the judgment; the time does not begin to ran again until after disposition of the motion.

Rule 59(e) encompasses many motions seeking relief of a type which technically might not be considered a motion for a new trial: for example, a motion for rehearing, reconsideration or vacation; a motion to amend a judgment of dismissal “without prejudice”; or one to vacate a dismissal for want of jurisdiction. Market v. Swift & Co., 173 F.2d 517 (2nd Cir.1949).

The significance of a motion under Rule 59(e) is that such a motion stops the appeal clock. If the relief sought does not fit under Rule 59(e) or is made later than 10 days after judgment, it is considered to fall within Rule 60(b), which does not toll the appeal time.