Tabcor Sales Clearing, Inc. v. United States

95 F.R.D. 534, 35 Fed. R. Serv. 2d 957, 1982 U.S. Dist. LEXIS 15402
CourtDistrict Court, N.D. Illinois
DecidedOctober 27, 1982
DocketNo. 75 C 2401
StatusPublished
Cited by2 cases

This text of 95 F.R.D. 534 (Tabcor Sales Clearing, Inc. v. United States) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tabcor Sales Clearing, Inc. v. United States, 95 F.R.D. 534, 35 Fed. R. Serv. 2d 957, 1982 U.S. Dist. LEXIS 15402 (N.D. Ill. 1982).

Opinion

ORDER

BUA, District Judge.

On March 23, 1981, this Court signed an order which awarded to plaintiff its attorneys’ fees and costs of this action in the amount of 15,00o;1 The docket sheet indicates that the order was entered by the Clerk of Court on March 24, 1981. Although the docket sheet also indicates that a copy of the draft order was mailed on March 24,1981, both parties have represented to the Court that they failed to receive copies of the order until more than ten days after its entry.2

On April 15, 1981, a date beyond the 10-day period prescribed by Fed.R.Civ.P. 59(e), plaintiff filed a motion for reconsideration of the March 23 order which challenged the Court’s calculation of the amount awarded. On April 20, 1981, defendant filed its motion for reconsideration, challenging not the amount of fees and costs, but rather the Court’s decision to allow the award at all. Pursuant to a schedule established by the Court, the motions were to be fully briefed by June 8, 1981.

Upon receipt of the docket sheet indicating entry of the March 23 order on March 24, 1981, defendant filed with this Court a motion for a 30-day extension of time within which to file a notice of appeal. See Fed.R.App.P. 4(a)5. Presumably, the purpose of this motion was to give this Court sufficient opportunity to address the motions for reconsideration, prior to the expiration of the time for appeal.3 This Court granted the motion for extension of time on May 22, 1981 at a hearing at which plaintiff’s counsel was present. On that same day, plaintiff filed a notice of appeal, which appeared to wrest jurisdiction over the matter from this Court.

On December 9, 1981, the United States Court of Appeals for the Seventh Circuit remanded the case to this Court for determination of the following issues:

1. Whether the parties received final notices of the district court’s March 23,1981 order.
[536]*5362. If the parties had no notice, whether the district court clerk’s failure to notify justifies an exception to the time requirements of Fed.R.Civ.P. 59(e) and 6(b) and would allow the district court to consider those parties’ motions as falling within Rule 59(e).

The Court of Appeals ruled that, if this Court were to determine that the parties’ motions were timely filed, it could reach the merits of those motions and undertake such additional procedures as might be required.

On January 13, 1982, this Court directed the parties to file briefs on the issues raised by the Court of Appeals. Upon consideration of the parties’ submissions and a review of the facts and the law, this Court concludes that 1) the parties did not receive final notices of the Court’s order of March 23,1981 within ten days after its entry, and that 2) despite this fact, this Court is without jurisdiction to determine the merits of the parties’ motions for reconsideration under Rule 59.

Additionally, although not mentioned by the Court of Appeals, it should be noted that, upon appropriate order of the appellate court, this Court would have jurisdiction to entertain the parties’ motions under Fed.R.Civ.P. 60(b), if it determined that those motions stated grounds for relief under the latter rule. See Binks Manufacturing Co. v. Ransburg Electro-Coating Corp., 281 F.2d 252, 260-261 (7th Cir.1960), and discussion at § III, infra. This Court has reviewed the parties’ memoranda, however, and has concluded that neither party has stated a basis for relief under Rule 60(b). Cf. Hahn v. Becker, 551 F.2d 741, 745 (7th Cir.1977).

Since the time limitation of Rule 59(e) has passed, divesting this Court of jurisdiction to entertain a motion under that rule, and since Rule 60(b) is inapplicable to the parties’ requests for relief from the March 23 order, this Court has concluded that its March 23 order stands as the final judgment of the district court in this case. Any relief from that judgment must be provided on appeal.

I.

As has already been stated, the order of the Court of Appeals required this Court first to determine whether and when the parties received final notice of the March 23 order. The parties have represented to the Court that they did not receive notice of the Court’s March 23 order until April 10 (plaintiff) or on or after April 15 (defendant), see n. 2, supra. This Court believes that these representations are sufficient to establish the fact of non-receipt within the 10-day period prescribed by Rule 59(e).

II.

In light of the above, this Court must determine whether the absence of notice within the 10-day period justifies an exception to the time requirements of Fed.R. Civ.P. 59(e) and 6(b) and would allow this Court to consider the parties’ motions as falling within that rule.

Fed.R.Civ.P. 59 provides a variety of methods for proposing vacation, alteration or amendment of judgments. Any motion for such relief, however, must be filed within ten days after entry of the judgment. Fed.R.Civ.P. 59(e). This 10-day limit applies to motions brought by the parties or on the initiative of the Court. Fed.R.Civ.P. 59(d). Additionally, Fed.R.Civ.P. 6(b) specifically provides that the district court may not extend the time for taking any action unless Rule 59 so provides.

A review of the applicable law indicates that the fact that the parties did not receive notice of the final judgment does not extend the 10-day period. Fed.R.Civ.P. 58 requires that every judgment be set forth on a separate document, and that a judgment is effective only when so set forth and when entered pursuant to Rule 79(a). Once that entry has been made, the time for filing Rule 59 motions begins to run. 6A J. Moore, Moore’s Federal Practice, ¶ 58.05[1], (2d ed. 1982). The time period runs “even though a party has not received notice of the entry of the judgment, pursuant to Rule 77(d), from the clerk or adverse party, or the clerk fails to record a correct copy of [537]*537the judgment as required by Rule 79(b).” Id. at H 59.09[1] (citations omitted).

In this case, the docket sheet indicates that judgment was entered on March 24, 1981.

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Bluebook (online)
95 F.R.D. 534, 35 Fed. R. Serv. 2d 957, 1982 U.S. Dist. LEXIS 15402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tabcor-sales-clearing-inc-v-united-states-ilnd-1982.