Opinion
Case No. 1:03-cv-01410-DFH-TAB.
February 4, 2005
ENTRY ON SECOND MOTION TO RECONSIDER
On December 22, 2004, the court granted defendant's motion for summary judgment and the clerk entered final judgment. The clerk of the court sent electronic notice of the judgment to counsel for the parties. On January 10, 2005, plaintiff filed and served a motion to reconsider the court's decision. The motion cited Rule 59(e) of the Federal Rules of Civil Procedure, but it appeared to the court to have been filed and served one day too late to be treated as a Rule 59 motion. See Russell v. Delco Remy Division of General Motors Corp., 51 F.3d 746, 749-50 (7th Cir. 1995) (comparing Rule 59(e) and Rule 60 and noting importance of date of service). January 10th was the 11th day after judgment was entered, excluding holidays and weekends, as allowed under Rule 6(a) of the Federal Rules of Civil Procedure. In any event, the court denied the motion on January 25, 2005, noting that the court's decision would be the same under Rule 59(e) and Rule 60(b).
On February 3, 2005, plaintiff filed a Second Motion to Reconsider. The second motion argues that the court erroneously failed to give plaintiff the benefit of an additional three days to serve the Rule 59(e) motion, which she contends should be allowed under the terms of Rule 6(e) of the Federal Rules of Civil Procedure. Rule 6(e) provides:
(e) Additional Time After Service under Rule 5(b)(2)(B), (C), or (D). Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the prescribed period.
The reference to Rule 5(b)(2)(B), (C), or (D) takes the reader to the following provision:
(b) Making Service.
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(2) Service under Rule 5(a) is made by:
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(B) Mailing a copy to the last known address of the person served. Service by mail is complete on mailing.
(C) If the person served has no known address, leaving a copy with the clerk of the court.
(D) Delivering a copy by any other means, including electronic means, consented to in writing by the person served. Service by electronic means is complete on transmission; service by other consented means is complete when the person making service delivers the copy to the agency designated to make delivery. If authorized by local rule, a party may make service under this subparagraph (D) through the court's transmission facilities.
Plaintiff argues that because the court sent electronic notice of the court's judgment, Rule 6(e) should allow her the extra three days, which would have brought her motion within the ten day time limit for Rule 59(e). See Lerro v. Quaker Oats Co., 84 F.3d 239, 242 (7th Cir. 1996) (holding that where Rule 6(e) applies based on service by mail, the three days are added after the due date is determined using Rule 6(a)'s allowance for holidays and weekends on time limits of ten days or less).
Plaintiff's reliance on Rule 6(e) and Lerro is misplaced, as the plain language of the relevant rules shows, and as several Courts of Appeal have squarely held. Rule 6(e) applies, by its terms, "[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party. . . ." That language does not encompass the ten day deadline under Rule 59(e), which provides: "Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." The ten day deadline of Rule 59(e) begins to run upon entry of judgment, not upon "service of a notice or other paper upon the party."
Several courts have faced precisely this question — whether a party filing and serving a Rule 59(e) motion is entitled to the extra three days under Rule 6(e). All circuits that have addressed the question have decided that the answer is no. See Albright v. Virtue, 273 F.3d 564, 571 (3d Cir. 2001) (Rule 59 motion was filed too late: "Rule 6(e) does not apply to time periods that begin with the filing in court of a judgment or order. Thus, Rule 6(e) does not apply to the 10-day period that runs from entry of judgment for moving to alter or amend judgment pursuant to Rule 59(e)."), quoting with approval 1 James Moore et al., Moore's Federal Practice § 6.053[3], at 6-35 (3d ed. 1998); FHC Equities, L.L.C. v. MBL Life Assur. Corp., 188 F.3d 678, 681-82 (6th Cir. 1999); Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 467-68 (5th Cir. 1998); Parker v. Board of Public Utilities, 77 F.3d 1289, 1290-91 (10th Cir. 1996); Derrington-Bey v. District of Columbia Dep't of Corrections, 39 F.3d 1224, 1225-26 (D.C. Cir. 1994); Adams v. Trustees of the New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 870 (3d Cir. 1994); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1113-14 (11th Cir. 1993); Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972).
In Lerro, by contrast, the case cited by plaintiff, the issue before the Seventh Circuit was whether an objection to a magistrate judge's report and recommendation under Rule 72(b) was timely. That rule provides: "Within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations." Rule 72(b) thus runs from service, so that its ten day time limit falls squarely within the language of Rule 6(e) allowing the extra three days.
The difference in wording between Rule 72(b), based on service, and Rule 59(e), based on entry of judgment, means that Lerro does not help plaintiff. Her original motion to reconsider was filed on the eleventh countable day and was therefore too late to be deemed a motion under Rule 59(e). In this court's view, which of course is not necessarily the last word on the subject, her motion must be deemed a motion under Rule 60(b). Also, in light of the prospect that plaintiff might file a third motion for reconsideration based, for example, on an argument that counsel misinterpreted the rules, the court notes that Rule 6(b) simply does not allow the district court to extend the time for filing a motion under Rule 59(e).
Finally, the court reiterates its view that its decision on the original motion to reconsider would have been the same under Rule 59(e) and Rule 60(b). The fact remains undisputed: even plaintiff's own treating doctor did not believe she was unable to work or that she had a "serious health condition" within the meaning of the FMLA. Plaintiff has offered no persuasive reason for the court to suppress or ignore that fact and to offer relief for such attempted misuse of the FMLA.
Accordingly, plaintiff's second motion to reconsider is hereby denied.
So ordered.