Concept
The 28-Day Deadline
Motion to alter or amend a judgment
The 28-Day Deadline
Rule 59(e) sets its deadline in one sentence: “A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”1 Two phrases do the work. Filed names the act the movant must complete in time, so the count ends on the day the motion reaches the court, not on the day the judge rules on it. Entry of the judgment names the event that starts the count, so every movant measures from the same procedural moment.
A firm period matters because of what the motion asks for. The movant returns to the judge who just ruled and requests a change, and until that request is resolved the outcome is not settled. A known starting event and a known last day tell everyone when the uncertainty ends. An open-ended period, or one that bent to each movant’s circumstances, would let a losing party hold the request in reserve and file it when strategy suited, leaving the judgment unsettled for as long as the movant chose. The short window costs little in finality and lets the trial judge repair an obvious mistake before the case reaches the court of appeals.
Two questions follow: when the 28 days begin, and whether a court may lengthen them for a movant who missed them. The first turns on what counts as entry. The second has a short answer, which is no.
When the Clock Starts
The 28 days run from entry of the judgment, and entry is an event on the docket, not a ruling. A judge may announce a decision from the bench, sign a written order days later, and leave the clerk to record it on the docket days after that. Only the docket entry starts the count. Davis v. Bruk, a Maine decision, states the principle in terms of the appeal period: the entry of the judgment appealed from, not the underlying decision of the court, triggers the period, and under Maine’s Rule 58 a judgment “is not effective before such entry.”2 The federal motion uses the same trigger, because the rule counts from “entry of the judgment.”3 A docket entry gives every party and the court one checkable date, which an announcement in open court or a signature in chambers does not.
Jenkins v. Landmark Chevrolet, an Alabama case, shows how much a few days can matter. The trial court’s order granting summary judgment to the dealer was dated March 26, 1990, but the clerk did not receive and file it until March 30.4 The buyers moved to reconsider on April 27, and the dealer argued that the motion came more than 30 days after the ruling. The court of appeals treated the motion as one to alter, amend, or vacate and held that the time to file began on March 30, when the order was received and filed, so the motion was timely.5 Alabama’s period was 30 days rather than 28, but the dates would clear a 28-day period as well. Counted from March 30, the April 27 filing falls on the twenty-eighth day. Counted from the March 26 date on the order, it falls on the thirty-second.
Davis also shows how the count proceeds once the starting event is fixed. After an amended judgment was entered on September 15, 1977, the plaintiffs moved on September 26 to amend the findings and for a new trial. Both motions were timely, although filed eleven days after entry, because the tenth day fell on a Sunday.6 Maine’s computation rule, quoted in the opinion, leaves out the day of the event that starts the period, includes the last day, and carries the period to the next ordinary day when the last day is a Saturday, a Sunday, or a legal holiday.7
Entry also depends on the judgment’s form. Rule 58(a)(1) requires, with exceptions, that every judgment and amended judgment be set forth on a separate document, and Rule 58 directs the clerk to prepare, sign, and enter the judgment promptly, without waiting for the court’s direction, when a jury returns a general verdict, the court awards only costs or a sum certain, or the court denies all relief.8 The separate document gives the parties one identifiable paper that marks where the court’s reasoning ends and the judgment begins. The rule excuses it for an order disposing of a motion under Rule 50(b), Rule 52(b), Rule 54 (attorney’s fees), Rule 59, or Rule 60.9 Those are orders on postjudgment motions, so a second freestanding document would add little.
When a court skips a required separate document, the rules must say what that does to the clock. Before the 2002 amendments, the majority view was that the appeal period never began to run if the district court docketed an order but failed to set it out on a separate document.10 The 2002 amendments added the 150-day rule so that, as the advisory committee explained, “parties will not be given forever to appeal (or to bring a post-judgment motion)” when a court ignores Rule 58(a)(1).11 The omission therefore cannot start a clock for which the parties had no paper, and it cannot hold the window open without end: judgment is deemed entered once 150 days pass without a separate document.
Havensight Capital v. Nike applied that backstop. The district court dismissed the amended complaint on February 18, 2015 and never entered a separate judgment, so judgment was deemed entered 150 days later, on July 18, 2015.12 The plaintiff had filed a motion for reconsideration one day after the dismissal, and the court observed that a party who files such a motion tolls the time to appeal pending its resolution.13 The date that mattered was the one the rule supplied, not the date of the dismissal order. Combined with Rule 59(e), the outer limit for a motion to alter or amend when a required separate judgment never appears is 150 days plus 28 days, or 178 days after the order was docketed.14
No Extensions Allowed
The 28 days cannot be lengthened. Rule 59(e) says the motion “must be filed no later than 28 days after the entry of the judgment,” and the sentence contains no clause letting a judge enlarge the period for good cause.16 The civil rules go further: the period for a Rule 59 motion may not be extended by the court, a limit that appears in Rule 6(b)(2).17
The deadline also controls the appeal calendar. A party who files a motion for reconsideration tolls the time to appeal while the court decides it,18 and the time to appeal is “mandatory and jurisdictional,” so a court of appeals that finds a notice late has no power to hear the case.19 A deadline that decides when the appeal clock pauses cannot flex with each movant’s excuse. If judges could stretch it, the finality of every judgment would depend on how long one judge was willing to wait, and no lawyer could calculate the appeal calendar with confidence. The strict window also confines the motion to its job. Banister v. Davis reasoned that Rule 59(e) imposes strict time limits and permits the district court only to rectify its own mistakes, so the motion belongs to the proper resolution of the petitioner’s first federal habeas proceeding and does not operate as the functional equivalent of a second proceeding.20
An untimely motion is denied, and a judge’s willingness to hear it changes nothing, because the judge lacks the power that would make that willingness matter.21 In In re SuperValu, plaintiffs moved for leave to amend a year and ten months after judgment. The district court declined to decide whether the motion was properly treated as postjudgment, because even under the lenient standard that applies before judgment, futility and undue delay counseled against leave to amend.22 The court of appeals treated the motion as a postjudgment motion and held it far outside the 28 days of Rule 59(e). Reaching the substance of a late request therefore does not make it timely.
Relabeling did not help the SuperValu plaintiffs either. The motion was equally untimely as a Rule 60(b) motion, which must be filed within a “reasonable time” and generally within a year of the judgment, and this one came about ten months after the year had run.23 The comparison with Rule 59(e) shows why. Rule 59(e) allows a strict 28 days, while Rule 60(b) covers mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud, misrepresentation, or misconduct; a void judgment; a satisfied judgment; and other reasons that justify relief, and it allows a motion within a reasonable time.24 A movant who has missed the 28 days may therefore ask whether Rule 60(b) offers a route, but must fit a listed ground and meet that rule’s own time limit. A later section compares the two rules side by side.
The two filings differ by one day, and that day decides whether the grounds are ever reached. A timely motion earns a ruling on its merits, which may still go against the movant; a late motion never gets that far. The tempting error is to treat the judge’s agreement as a waiver, when the deadline belongs to the rules and the judge has no power to waive it.
Because no one can extend the period, every lawyer in the case can calculate the day it expires, and practice builds on that. Applying the ten-day deadline that Rule 59(e) then carried, the Seventh Circuit in Lorenzen called it nonextendable and advised appellants to wait until it had passed before filing a notice of appeal, so that the notice would be indefeasible. A timely Rule 59(e) motion would otherwise leave a notice filed earlier with “no effect,” under the appellate rule as the court quoted it.25 The number is now 28, and the advice rests on the same fixed expiration date. The stakes extend past the motion itself. In a dispute over a union local’s attorneys’ fees, the court of appeals found no abuse of discretion in the district court’s refusal to treat the fee motion as a Rule 59 motion, and it quoted Budinich v. Becton Dickinson & Co. for the rule that “the taking of an appeal within the prescribed time is mandatory and jurisdictional.”26 A later section takes up what becomes of a notice of appeal filed while a timely motion is pending.