What a Diff'rence a Day Makes: Seventh Circuit Reviews Delinquent Rule 59(e) Motion

30 April 2014 Wisconsin Appellate Law Blog

Deadlines matter, even if you’re late, as Dinah Washington once famously crooned, by “24 little hours.” That lesson was driven home again by the Seventh Circuit in Banks v. Chicago Bd. of Educ., No. 13-2018 (7th Cir. Apr. 24, 2014), a case in which the appellant’s tardy Federal Rule of Civil Procedure 59(e) motion, filed one day after the Rule’s 28-day deadline, failed to toll the time to appeal the entry of summary judgment. 

Patricia Banks, a former high-school teacher in Chicago, brought a Title VII claim against the Chicago Board of Education. The district court granted the Board’s motion for summary judgment. Banks then filed a motion to alter the judgment under Rule 59(e), in essence arguing that the district court was wrong on the merits of her claims, one day after Rule 59(e)’s 28-day deadline. The district court denied the motion six days later.

The Seventh Circuit doesn’t disregard late Rule 59(e) motions altogether. Those familiar with the Seventh Circuit no doubt recall that, under Justice v. Town of Cicero, 682 F.3d 662 (7th Cir. 2012) (where the appellant filed the motion electronically at 3:00 a.m. on the 29th day, prompting the court to invoke a reference to Cinderella and what happened to her at midnight), the court treats a late Rule 59(e) motion as a motion under Rule 60(b), regardless of what the movant and, in this case, even the district court calls it.

The problem for the tardy movant is that a Rule 60(b) motion suffers from the inability to toll the time to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(1)(A) and from a more limited and deferential review.

That hamstrung Banks here, to say the least. The Seventh Circuit found that it had no appellate jurisdiction to review the entry of summary judgment. The only motion in play was the converted Rule 60(b) motion, and, since the Seventh Circuit’s case law directs it to be on the lookout for movants using 60(b) motions to circumvent the deadline to appeal, and since Banks’s arguments were ones that could have been raised on direct appeal, the Seventh Circuit was unwilling to find that the district court abused its discretion by denying her motion.

Add Banks to Town of Cicero and to the substantial body of case law in the Seventh Circuit on the importance of meeting filing deadlines.

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