Latham v. Dominick's Finer Foods
| Decision Date | 14 July 1998 |
| Docket Number | No. 98-1392,98-1392 |
| Parties | 78 Fair Empl.Prac.Cas. (BNA) 620 Joseph LATHAM, Plaintiff-Appellant, v. DOMINICK'S FINER FOODS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph Latham, Homewood, IL, pro se.
Richard H. Schnadig, Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Defendant-Appellee.
Before POSNER, Chief Judge, and MANION and ROVNER, Circuit Judges.
The timeliness of the plaintiff's appeal in this employment discrimination case depends on whether his Rule 59 motion in the United States District Court for the Northern District of Illinois was timely. (A timely motion would toll his time to appeal, Fed. R.App. P. 4(a)(4); an untimely one would not.) That in turn depends on whether Friday, December 26, 1997 (the day after Christmas), should be excluded from the ten days allowed for filing such a motion, for December 26 was Latham's tenth day. Whether it should be excluded depends on the meaning of the provision of Fed.R.Civ.P. 6(a) that "When the period of time prescribed or allowed is less than 11 days," as it is here, "intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation," while the last day of the period shall be excluded if it falls on one of those days or if it involves "the filing of a paper in court" and "weather or other conditions have made the office of the clerk of the district court inaccessible." The term "legal holiday" is defined in the rule to include a number of designated holidays, such as Christmas and New Year's Day, plus "any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held."
President Clinton ordered all departments and agencies of the executive branch of the federal government closed on December 26, but he did not declare December 26 a holiday; nor did the closure order extend to the federal courts. Executive Order 13068, 62 Fed.Reg. 63,247 (Nov. 25, 1997). Neither Congress nor the State of Illinois declared December 26, 1997, a holiday. The Chief Judge of the U.S. District Court for the Northern District of Illinois, however, purportedly "in recognition of Presidential Executive Order 13068, dated 25 November 1997 and pursuant to its provisions contained therein," ordered the court, including its clerk's office, closed on December 26 and the order adds that motions or process due, returnable, or expiring on that day need not be filed until the following Monday. General Order, N.D. Ill., Dec. 2, 1997. From this we infer that no arrangements were made to permit filings on December 26. The "weather or other conditions" amendment is not explicitly addressed to official closings and none of the entities specified in Rule 6(a) declared December 26 a holiday, creating the specter of filers falling between two stools--that of the courthouse that is closed because of a holiday and that of a courthouse closed by weather or some other Act of God or the Public Enemy. We cannot find an appellate case that deals with this situation, though Prudential Oil & Minerals Co. v. Hamlin, 261 F.2d 626 (10th Cir.1958), is close; it excluded...
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Hart v. Sheahan
...December 26 to be a holiday, the plaintiffs' Rule 59(e) motion was untimely. In support they cite our decision in Latham v. Dominick's Finer Foods, 149 F.3d 673 (7th Cir.1998). The deadline for filing a Rule 59(e) motion in that case was December 26, 1997, also a Thursday. But the court was......
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Pettway ex rel. Pettway v. Barnhart
...on December 31. See Keyser v. Sacramento City Unified School District, 265 F.3d 741, 747 (9th Cir.2001); Latham v. Dominick's Finer Foods, 149 F.3d 673, 674 (7th Cir.1998). Congress has provided a somewhat different list of excluded days in the Social Security context. See 42 U.S.C. § 416(j......
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Keyser v. Sacremento City Unified School Dist.
...the Clerk's Office was closed was sufficient to make it "inaccessible" within in the meaning of Rule 26. See Latham v. Dominick's Finer Foods, 149 F.3d 673, 674 (7th Cir. 1998) (holding that, where Chief Judge closed the clerk's office even though it was not a holiday, "Rule 6(a) (and its c......
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Mashpee Wampanoag Tribal Council, Inc. v. Norton
...out, the Seventh Circuit has suggested that for the President to declare a "holiday" he must use that word. See Latham v. Dominick's Finer Foods, 149 F.3d 673, 674 (1998). But the actual holding in that case was that the disputed motion was timely because the courthouse was closed on the da......
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Organization and strategy
...excuse ( i.e. , it is not excusable neglect) for failing to file on time simply because you miscounted. Latham v. Dominic’s Finer Foods , 149 F.3d 673, 674 (7th Cir. 1998) (intervening holiday). §1:04 Individual Judges’ “Rules” and Standing Orders Individual judge’s rules are sometimes call......
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Table of Cases
...Trial in Federal Court C- 822 Lang v. Texas and Pac. Ry. Co. , 624 F.2d 1275 (5th Cir. 1980), §9:33.1 Latham v. Dominic’s Finer Foods , 149 F.3d 673, 674 (7th Cir. 1998), §1:03 Lavespere v. Niagara Machine and Tool Works, 910 F.2d 167 (5th Cir. 1990), §§7:174, 7:180 Lawyers Title Insurance ......