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Civil Procedure — reconsideration

United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure — reconsideration

FRCP 6(d) does not extend the deadline for filing FRCP 59(e) motions.

“On appeal Williams contends that the district court erred in evaluating his post-judgment motion under Rule 60(b). But we have established a bright-line rule that any motion for reconsideration filed after the deadline must be construed as a motion to vacate. See Justice v. Town of Cicero, Ill., 682 F.3d 662, 663–65 (7th Cir. 2012); Kiswani v. Phoenix Sec. Agency, Inc., 584 F.3d 741, 742–43 (7th Cir. 2009). Williams insists that he had three extra days to ask for reconsideration because he received the dismissal by mail, see FED. R. CIV. P. 6(d), but that rule enlarges the filing time only when the period for acting runs from the service of a notice, not when the time begins after the entry of judgment, as it did here. See McCarty v. Astrue, 528 F.3d 541, 545 (7th Cir. 2008); Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004). We now join every circuit that has ruled on this precise issue and conclude that Rule 6(d)—formerly Rule 6(e)—does not extend the deadline for Rule 59(e) motions. See Jackson v. Crosby, 375 F.3d 1291, 1296 (11th Cir. 2004); Albright v. Virtue, 273 F.3d 564, 571 (3d Cir. 2001); Arnold v. Wood, 238 F.3d 992, 995 n.2 (8th Cir. 2001); Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 467–68 (5th Cir. 1998); Parker v. Bd. of Pub. Utils. of Kansas City, Kan., 77 F.3d 1289, 1290–91 (10th Cir. 1996); Derrington-Bey v. D.C. Dep’t of Corr., 39 F.3d 1224, 1225–26 (D.C. Cir. 1994); Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972). Thus the judge properly considered the motion under Rule 60(b) and did not abuse his discretion in denying it. Relief under Rule 60(b) is limited to grounds specified in the rule or to extraordinary circumstances, see Mendez v. Republic Bank, 725 F.3d 651, 657 (7th Cir. 2013); Stoller v. Pure Fishing Inc., 528 F.3d 478, 480 (7th Cir. 2008), none of which Williams established. Although he argues that the district court erred by dismissing his suit with prejudice for failure to prosecute when it could have dismissed without prejudice for lack of service, see FED. R. CIV. P. 4(m), a court has the discretion to dismiss for want of prosecution if the plaintiff’s delay in obtaining service is so long that it signifies failure to prosecute, see O’Rourke Bros. Inc. v. Nesbitt Burns, Inc., 201 F.3d 948, 953 (7th Cir. 2000); Powell v. Starwalt, 866 F.2d 964, 966 (7th Cir. 1989); Dewey v. Farchone, 460 F.2d 1338, 1340–41 (7th Cir. 1972). Williams had not served any of the defendants more than 16 months after filing suit, four times the normal limit for service of process. See FED. R. CIV. P. 4(m); Cardenas v. City of Chicago, 646 F.3d 1001, 1004–05 (7th Cir. 2011).”

Affirmed.

13-2652 Williams v. State of Illinois

Appeal from the United States District Court for the Central District of Illinois, McDade, J., Per Curiam.


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