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Civil Procedure — motions for reconsideration

By: WISCONSIN LAW JOURNAL STAFF//June 5, 2012//

Civil Procedure — motions for reconsideration

By: WISCONSIN LAW JOURNAL STAFF//June 5, 2012//

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure — motions for reconsideration

A district court cannot declare an untimely motion for reconsideration under FRCP 59 to be timely.

“Nunc pro tunc, a Latin phrase, means ‘now for then.’ A judge has the power to change records so that they show what actually happened. Thus if Justice had filed his motion on November 22, and the clerk’s office had erroneously treated it as filed on November 23, the judge could correct the records to show the right date. See Royall v. National Association of Letter Carriers, 548 F.3d 137, 138–39 (D.C. Cir. 2008). But that’s not what occurred here. The judge changed the records to show that the motion had been filed a day before its arrival. That is an improper use of the nunc pro tunc procedure—a point this court has made repeatedly. See, e.g., Kusay v. United States, 62 F.3d 192 (7th Cir. 1995); In re IFC Credit Corp., 663 F.3d 315, 317–18 (7th Cir. 2011) (Nunc pro tunc ‘is not a substitute for relation back. It can’t be used to revise history, but only to correct inaccurate records. Central Laborers’ Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999); King v. Ionization Int’l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987); United States v. Suarez-Perez, 484 F.3d 537, 541 (8th Cir. 2007).’). A judge who lacks the authority to grant an extension of time, see Rule 6(b)(2), can’t achieve the same end by calling the extension a ‘nunc pro tunc order’ and backdating a document.”

So ordered.

11-3876 Justice v. Town of Cicero

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Easterbrook, J.

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