Past 28 days, a fed. R. Civ. P. 59(e) motion is a fed. R. Civ. P. 60(b) motion, regardless of what the movant calls it

The district court granted summary judgment for the defendants on all claims. Twenty-nine days later, the plaintiff filed a motion to alter the entry of summary judgment pursuant to Federal Rule of Civil Procedure 59(e). The district court denied that motion 6 days later. The plaintiff filed a notice of appeal 24 days after that, challenging the summary judgment order and the denial of her motion to alter the judgment. Did the court of appeals have jurisdiction to review the summary judgment?

No, according to a Seventh Circuit panel, and here’s why. A Rule 59(e) motion, which tolls the time to file a notice of appeal, must be filed no later than 28 days after the entry of the judgment. A court may not extend the time to file such a motion. When a motion attacking the judgment is filed more than 28 days after the judgment, the court will treat it as a motion under Rule 60(b) (assuming that it is timely under Rule 60(c)), which does not toll the time to appeal. See Fed. R. Civ. P. 60(c)(2).

A party in a civil case must file a notice of appeal within 30 days after entry of the judgment. In this case, the plaintiff’s notice of appeal was filed within 30 days after the denial of her “Rule 60(b)” motion, but well past 30 days after the entry of summary judgment. Accordingly, the court found that the notice was not timely to bring up the summary judgment motion for review and it limited the appeal to the denial of the motion attacking the judgment.

An appeal of the summary judgment would have been considered under the de novo standard of review. However, the denial of a Rule 60(b) motion is subject to the much more deferential abuse of discretion standard. The court of appeals commented on its “interest in barring the use of Rule 60(b)(6) as a substitute for direct appeal” and found that the district court had not abused its discretion. The court affirmed the denial of the plaintiff’s motion, but expressed no opinion on whether summary judgment was correctly entered.

Banks v. Chicago Board of Education, 750 F.3d 663 (7th Cir. 2014).