Opinion
CIV. S-99-1692 GEB DAD
May 29, 2002
ORDER
Plaintiffs moved under Rule 59(e) of the Federal Rules of Civil Procedure to amend the Judgment entered on April 24, 2002. The motion was heard May 28, 2002.
The Judgment is amended as follows: Each Plaintiff and member of the class is awarded $121.24; the class includes all individuals who, at any time since April 1, 1999, to and including October 31, 1999, (a) were California State employees in a bargaining unit represented by Professional Engineers in California Government, (b) were not union members, and (c) had `fair share fees' taken from their pay.
PECG filed a response to Plaintiffs' motion on May 13, 2002, in which PECG also seeks to amend the judgment. PECG's response constitutes an untimely request as it was filed three days after the ten day time limit. See Fed.R.Civ.P. 59(e) (providing a ten day time limit). PECG argues its motion is timely because Plaintiffs' motion opened the earlier judgment and authorized PECG to seek any desired amendment of that judgment. See McNabola v. Chicago Transit Authority, 10 F.3d 501, 520 (7th Cir. 1993) ("Although a timely postjudgment motion opens up the earlier judgment and even permits the court to enlarge on the issues delineated in the motion, the non-moving party may not then make up its own untimely request for alteration of the judgment on a wholly independent ground."); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1129 (11th Cir. 1994) ("an untimely Rule 59 motion cannot be salvaged by another party's timely Rule 59 motion."). Since PECG's grounds for amendment are "wholly independent" to those in Plaintiffs' motion, PECG's request is untimely and therefore denied.
Judgment is entered in accordance with this Order.