Opinion
Case No. 01-2190-JWL
October 8, 2002
MEMORANDUM ORDER
Plaintiff filed suit against defendant, his former employer, alleging that defendant, on the basis of plaintiff's age and in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., failed to promote or otherwise transfer plaintiff to an open position within the company after defendant acquired plaintiff's previous employer and ultimately terminated plaintiff's employment. On August 7, 2002, the court granted summary judgment in favor of defendant and dismissed plaintiff's complaint in its entirety. See Kaster v. Safeco Ins. Co. of Am., 212 F. Supp.2d 1264 (D.Kan. 2002). This matter is presently before the court on plaintiff's motion to alter or amend the judgment pursuant to Rule 59(e) (doc. #63) and defendant's motion to strike as untimely plaintiff's motion to alter or amend (doc. #68). As set forth below, the court grants defendant's motion to strike and strikes plaintiff's motion to alter or amend.
The court entered judgment in this case on August 7, 2002. Pursuant to Federal Rule of Civil Procedure 59(e), any motion to alter or amend the judgment was due "no later than 10 days after entry of the judgment." The three additional days described in Federal Rule of Civil Procedure 6(e) cannot be utilized to extend Rule 59(e)'s ten-day deadline because the deadline is "triggered by entry of judgment, not by service of notice or other paper as contemplated by Rule 6(e)." See Parker v. Board of Pub. Utils., 77 F.3d 1289, 1290-91 (10th Cir. 1996). Moreover, the court has no authority to extend the ten-day filing period. See Fed.R.Civ.P. 6(b).
Excluding weekends and holidays, then, plaintiff's motion to alter or amend must have been filed no later than August 21, 2002. Plaintiff, however, did not file his motion to alter or amend until August 22, 2002. While plaintiff does not expressly concede that his motion was untimely filed, he has failed to respond in any fashion to defendant's motion to strike. Defendant's motion to strike was filed on September 5, 2002 and, accordingly, plaintiff's response time has long since passed. The court, then, construes plaintiff's failure to respond as a concession that his motion to alter or amend was not timely filed.
In short, because plaintiff's motion to alter or amend was filed out of time, the court grants defendant's motion to strike and strikes plaintiff's motion to alter or amend.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant's motion to strike (doc. #68) is granted and plaintiff's motion to alter or amend (doc. #63) shall be stricken.
IT IS SO ORDERED.