Victor Lommen, natural father of Joshua Lommen, a minor v. JOHN FRANCIS McINTYRE

*The Honorable Daniel M. Friedman, Senior United States Circuit Judge with the Court of
Appeals for the Federal Circuit, sitting by designation.
NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0181n.06
Filed: March 10, 2005
No. 03-2313
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
VICTOR LOMMEN, natural father of
Joshua Lommen, a minor; and JOSHUA
LOMMEN, a minor, by his natural father
Victor Lommen,
Appellants,
v.
JOHN FRANCIS McINTYRE,
Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
OPINION
Before: MARTIN, GILMAN, and FRIEDMAN, Circuit Judges.*
RONALD LEE GILMAN, CIRCUIT JUDGE. Victor Lommen seeks a federal
declaratory judgment that he is the “natural father” of Joshua McIntyre-Lommen. His complaint
was dismissed after the district court concluded that it lacked subject matter jurisdiction. Because
Lommen’s notice of appeal from the district court’s dismissal was not timely filed, however, we
reach only the limited question of whether the district court properly denied his motion for
reconsideration. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND

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John and Kim McIntyre were married in Michigan in 1983. Kim began an extramarital
relationship in 1991 with Victor Lommen. While still married and living with her husband, Kim
gave birth to a son, Joshua, in December of 1991. The McIntyres eventually divorced and Kim was
remarried to Lommen. Lommen then sought custody of Joshua, who Lommen maintains is his son.
Following many years of litigation in the Michigan and Illinois state courts regarding the
paternity and custody of Joshua, Victor Lommen filed the present action in May of 2003 in the
United States District Court for the Eastern District of Michigan. Based on the results of a DNA
test, he asked the district court to (1) declare that Lommen is Joshua’s natural father, (2) declare that
the relationship between Joshua and Victor is constitutionally protected under the First and
Fourteenth Amendments, and (3) order McIntyre not to interfere in the exercise of Victor’s and
Joshua’s federal constitutional right.
Shortly after the complaint was filed, the district court issued an order directing Lommen to
show cause why the case should not be dismissed for lack of subject matter jurisdiction. The order
noted that, on its face, “[t]he Complaint alleges traditional state law issues and does not invoke the
Court’s diversity jurisdiction.” Lommen responded, arguing that the case was within the district
court’s federal question jurisdiction because he was seeking to “vindicate [his] constitutional right
to what has been called the right of parental autonomy or the right to family integrity under the
United States Constitution.” Observing that Lommen had “responded by citing several United
States Supreme Court cases finding a constitutional right of parental autonomy,” the district court
concluded that Lommen had properly invoked the court’s federal question jurisdiction.

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Two days later, however, the district court revisited its earlier jurisdictional finding, stating
that “[o]n further reflection, the Court reconsiders that decision sua sponte, and finds that there is
no constitutional right to have the issue of paternity determined by a federal court.” The district
court then dismissed Lommen’s complaint for lack of subject matter jurisdiction. This order was
issued on July 10, 2003.
On August 19, 2003, Lommen filed a “Motion for Reconsideration,” in which he argued
essentially the same points that he had raised in his earlier response to the court’s show-cause order.
Finding that the motion was filed “well after” the 10-day period allowed under Rule 59(e) of the
Federal Rules of Civil Procedure, the district court denied Lommen’s motion on August 20, 2003.
On September 19, 2003, Lommen filed a timely notice of appeal from the denial.
Both parties submitted briefs to this court addressing the merits of whether federal question
jurisdiction exists when a party asserts a “federal constitutional right of parental autonomy or family
integrity.” McIntyre also filed a motion to dismiss for lack of jurisdiction, alleging that Lommen’s
appeal of the underlying matter was untimely. The motion to dismiss was referred to a panel of this
court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. That panel, composed of Judges Martin,
Sutton, and Quist, issued an order on June 14, 2004, concluding that Lommen’s “notice of appeal
from the district court’s judgment was not timely.” The panel then referred the motion to us for
consideration of whether “this court nevertheless may have jurisdiction over the limited issue of
whether the motion for reconsideration . . . was properly denied.”
II. ANALYSIS

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Lommen did not file his notice of appeal until 71 days after the district court’s dismissal of
his case for lack of subject matter jurisdiction. The Federal Rules of Appellate Procedure require
litigants in civil cases to file a notice of appeal “with the district clerk within 30 days after the
judgment or order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A). But certain post-decision
motions, including a motion for reconsideration, toll this 30-day period. Id. at 4(a)(4). “[A]ny of
the tolling motions must be filed within 10 days after entry of the judgment,” however, and
Lommen’s motion for reconsideration was not filed until 40 days after the district court’s dismissal
of his action. See Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1103 (6th Cir. 1985) (holding that
“a post-decision motion only tolls the 30-day requirement if it is timely filed”). Because Lommen
failed to appeal the district court’s dismissal order within 30 days and because he did not timely file
his motion for reconsideration, we are without jurisdiction to hear his appeal from the district court’s
dismissal of his complaint for lack of subject matter jurisdiction. See Searcy v. City of Dayton, 38
F.3d 282, 287 (6th Cir. 1994) (“A timely notice of appeal is a mandatory and jurisdictional
prerequisite which this court can neither waive nor extend.”).
In any event, Lommen is essentially seeking a federal declaration that he is Joshua’s father,
and matters of paternity are for the state courts. See Firestone v. Cleveland Trust Co., 654 F.2d
1212, 1215 (6th Cir. 1981) (“Even when brought under the guise of a federal question action, a suit
whose substance is domestic relations generally will not be entertained in a federal court.”). We
therefore dismiss Lommen’s appeal insofar as it challenges the merits of the district court’s
dismissal of his complaint for lack of jurisdiction.

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Lommen, however, contends that we may hear his appeal because he filed a timely notice
after the district court’s denial of his motion for reconsideration. But McIntyre maintains that we
lack jurisdiction in the present case because Lommen’s appeal from the district court’s denial of a
motion for reconsideration “is an appeal from a normally nonappealable order.” See Walker v.
Mathews, 546 F.2d 814, 817 n.1 (9th Cir. 1976); see also Md. Tuna Corp. v. MS Benares, 429 F.2d
307, 316 (2d Cir. 1970) (stating that denials of motions for reconsideration “do no more than deny
a motion for reargument, and such orders are generally not appealable”). The cases cited by
McIntyre, however, predate the Supreme Court’s clear pronouncement in Stone v. INS, 514 U.S.
386, 401 (1995), that “[t]he denial of the motion [for reconsideration] is appealable as a separate
final order.” Accordingly, this court has held that appeals from orders denying motions for
reconsideration are within our appellate jurisdiction. See Hood v. Hood, 59 F.3d 40, 42 (6th Cir.
1995).
In reviewing Lommen’s appeal from the district court’s denial of his motion for
reconsideration, we are mindful that the scope of our appellate review is quite narrow. Id. (“On an
appeal from the denial of a motion [for reconsideration and] for relief from judgment under Rule
60(b), ‘the Court of Appeals may review the ruling for abuse of discretion . . . [, but] an appeal from
denial of Rule 60(b) relief does not bring up the underlying judgment for review.’”) (quoting
Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 263 n.7 (1978)). We therefore do not reach the
underlying dismissal by the district court based upon a lack of subject matter jurisdiction, but instead
review the district court’s denial of the motion for reconsideration for an abuse of discretion.

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The district court dismissed Lommen’s complaint for lack of subject matter jurisdiction on
July 10, 2003. Lommen filed his motion for reconsideration 40 days later, on August 19, 2003.
Because a motion for reconsideration brought pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure must “be filed no later than 10 days after entry of the judgment,” we conclude that the
district court did not abuse its discretion in denying Lommen’s motion as untimely.
When a motion for reconsideration is filed after the 10-day time limitation imposed by Rule
59(e), however, a court may construe the motion as having been filed pursuant to Rule 60(b) of the
Federal Rules of Civil Procedure. See Peake v. First Nat’l Bank & Trust Co., 717 F.2d 1016, 1020
(6th Cir. 1983) (approving the district court’s decision to treat an untimely Rule 59(e) motion as a
timely motion for reconsideration pursuant to Rule 60(b)). The three-judge panel of this court that
first considered McIntyre’s motion to dismiss decided that Lommen’s motion for reconsideration
could properly be construed as a Rule 60(b) motion, and the panel suggested that we consider
whether the motion was properly denied by the district court.
“As a prerequisite to relief under Rule 60(b), a party must establish that the facts of its case
are within one of the enumerated reasons contained in Rule 60(b) that warrant relief from
judgment.” Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir. 1993). Because Lommen’s motion does
not come within the first five grounds specified in the rule, it presumably falls under subdivision (6),
which permits a district court to grant a motion for relief from judgment for “any other reason
justifying relief from the operation of the judgment.” But a motion under Rule 60(b)(6) may be
granted “only in exceptional or extraordinary circumstances.” Hopper v. Euclid Manor Nursing
Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989).

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Lommen’s motion for reconsideration does nothing more than restate the arguments
contained in his earlier response to the court’s show cause order. Although “this approach may be
appropriate for an appeal on the merits . . . it fails to establish that the facts of [Lommen’s] case are
within one of the enumerated reasons contained in Rule 60(b).” Johnson v. Unknown Dellatifa, 357
F.3d 539, 543 (6th Cir. 2004). Because Lommen’s motion for reconsideration presented nothing
new, we conclude that the district court did not abuse its discretion in denying his motion. See id.
at 544 (affirming district court’s denial of a rule 60(b)(6) motion where the “motion merely
rephrases the allegations contained in the complaint and presents no new arguments”).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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