Steve Willie, Cross-Appellant v. Continental Oil Co., Offshore Logistics, Inc., Cross-Appellee

784 F.2d 706, 4 Fed. R. Serv. 3d 427, 1986 U.S. App. LEXIS 22900

Opinions

ALVIN B. RUBIN and TATE, Circuit Judges:

Two panels of . this court reached conflicting decisions concerning the classification of a post-judgment motion to amend the district court’s judgment. Compare Harcon Barge Co. v. D & G Boat Rentals, Inc.,1 with Willie v. Continental Oil Co.2 Willie allowed a court discretion to classify a post-judgment motion as invoking either Rule 59(e) or Rule 60. Harcon Barge, on the other hand, held that, if a post-judgment motion falls within the scope of Fed. R.Civ.P. 59(e), and it is timely served within ten days after entry of judgment as the rule requires, then the court must consider it a Rule 59(e) motion for the purposes of Fed.R.App.P. 4(a)(4), however it may be styled. The court, therefore, ordered both reheard en banc.

In Willie,³ one of the parties filed and served a “Motion to Amend Judgment” within ten days after the entry of the disputed judgment. Shortly thereafter, the appellant and cross-appellant filed their notices of appeal. The district court subsequently granted the motion to amend on December 2, 1983. In our en banc decision today in Harcon Barge, we hold that any motion to amend a judgment served within ten days after the entry of judgment, except for a proper Rule 60(a) motion to correct purely clerical errors, is to be considered a Rule 59(e) motion. As such, it suspends the time for filing a notice of appeal and renders premature any notice of appeal previously filed.⁴ In accordance with that decision, we hold that the motion to amend the judgment in this case was a Rule 59(e) motion, and the previously filed notices of appeal were null under Fed.R. App.P. 4(a)(4). No notices of appeal were filed after the amended judgment was entered on December 2, 1983, and the time for filing has long since expired. This court, therefore, lacks jurisdiction to hear the appeal.

We therefore order that the appeal in this case be dismissed, and the district court’s amended judgment of December 2, 1983 be reinstated. Costs shall be borne equally by the appellant and cross-appellant.

APPEAL DISMISSED.

1

. 746 F.2d 278 (5th Cir.1984), vacated, 760 F.2d 86 (5th Cir.1985) (ordering rehearing en banc), appeal dismissed, 784 F.2d 665 (5th Cir. 1986) (en banc).

2

. 746 F.2d 1041 (5th Cir.1984), vacated, 760 F.2d 87 (5th Cir.1985) (ordering rehearing en banc).

3

. A full description of the facts can be found in the panel opinion. Willie v. Continental Oil Co., 746 F.2d 1041 (5th Cir.1984). We give only those facts necessary for the rehearing.

4

. 784 F.2d 665, at 668 (5th Cir.1986) (en banc).