Seventh Circuit Confirms that Parties Seeking Review of an Interlocutory Order Have 30 Days to Request a Rule 54(b) Judgment

The rule of 28 U.S.C. § 1291 limits the appealability of district court orders to “final decisions.” Although an order resolving fewer than all claims of all parties is not a final decision for purposes of appeal, Rule 54(b), Fed. R. Civ. P., permits district courts to make such orders appealable by expressly determining that “there is no just reason for delay.”

The Seventh Circuit recently held in King v. Newbold, No. 15-1302 (7th Cir. Jan. 12, 2017), that a Rule 54(b) motion was improperly granted because the motion was untimely made. The twist? The Federal Rules do not establish a deadline for filing a Rule 54(b) motion. The 30-day deadline that the Court invoked comes from one of its own decisions published in 1972.

In Schaefer v. First National Bank of Lincolnwood, 465 F.2d 234 (7th Cir. 1972), the Seventh Circuit held that a Rule 54(b) motion must be filed no more than 30 days after entry of the order sought to be appealed. Motions filed after 30 days require a showing of “extreme hardship” and should be granted only rarely. The 30 days in this caselaw-based deadline was taken from Rule 4 of the Federal Rules of Appellate Procedure, which requires filing of a notice of appeal within 30 days of entry of a final judgment. Schaefer explained that permitting a party to wait more than 30 days to file a Rule 54(b) motion would “erect an unnecessary disparity between timeliness requirements for appeals before and appeals after the ultimate termination of a lawsuit in the trial court.”

No other federal appellate court has adopted the 30-day rule, and the Seventh Circuit itself had not invoked the rule since Schaefer, leading litigants and lower courts alike to speculate that “the 30-day rule ha[d] died an unremarked death.” Heath v. Wal-Mart Stores, Inc., 2001 WL 58600 (S.D. Ind. Jan. 23, 2001).

Enter the Court’s decision in King. The plaintiff prisoner wanted to appeal orders dismissing his claims against all but two of the defendants, a situation that might have justified a Rule 54(b) interlocutory judgment. But he waited more than 40 days after entry of some of the orders and more than a year after entry of others before seeking a Rule 54(b) judgment. The judge granted the motion.

The Seventh Circuit dismissed the subsequent appeal for lack of appellate jurisdiction. In a short opinion authored by Judge Diane Sykes and joined by Chief Judge Diane Wood and Judge Ilana Rovner, the Court held that the plaintiff’s “seriously tardy” Rule 54(b) motion required a showing of extreme hardship. Because the plaintiff had offered no “good reason for the delay,” the district court’s grant of the motion was an abuse of discretion under Schaefer. The Court’s decision puts to rest any speculation that it had abrogated its 30-day deadline for filing a Rule 54(b) motion. Schaefer remains alive and well.