Bailey v. Sharp, 85-2798

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation782 F.2d 1366
Docket NumberNo. 85-2798,85-2798
PartiesJoseph L. BAILEY, Plaintiff-Petitioner, v. Allen C. SHARP, Chief Judge, United States District Court for the Northern District of Indiana, Respondent, Kevin C. Andrews, Real party in interest.
Decision Date10 February 1986

Page 1366

782 F.2d 1366
4 Fed.R.Serv.3d 253
Joseph L. BAILEY, Plaintiff-Petitioner,
Allen C. SHARP, Chief Judge, United States District Court
for the Northern District of Indiana, Respondent,
Kevin C. Andrews, Real party in interest.
No. 85-2798.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 12, 1985.
Decided Feb. 10, 1986.

Page 1367

Roger Wm. Bennett, Bennett, Boehning, Poynter & Clary, LaFayette, Ind., for plaintiff-petitioner.

Jay T. Hirschauer, Hirschauer & O'Neill, Logansport, Ind., for respondent.

Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.


The jury in this civil rights suit returned a verdict on June 27, 1985, awarding Joseph L. Bailey $80,000 against defendant Kevin C. Andrews. The clerk immediately entered a judgment. The judge then stated in open court: "I will set a briefing schedule. I will probably give you more time than the rules allow but I must--you are on your own as to when you would file any motion for--I mean when you have to file any notice of appeal. I am not giving free advice on that subject. I am just setting the schedule.... It has been determined that the defendant Kevin C. Andrews has until the 15th of July, 1985 to file any and all motions in favor of the motion for directed verdict and indeed to file a motion for a new trial." Andrews filed his motion for a new trial 15 days later, on July 12. The district court granted the motion conditionally on September 9, ordering a new trial unless Bailey accepted a remittitur to $17,000. Bailey rejected the remittitur, so on October 7 the court made the order for a new trial unconditional.

Bailey asks us to issue a writ of mandamus directing the district court to set aside the order for a new trial and to reinstate the final judgment. The argument is straightforward. Under Fed.R.Civ.P. 59(b) a party has only 10 days to file a motion seeking a new trial. Andrews took 15. Although the district court gave Andrews 18 days, which he did not exceed, Fed.R.Civ.P. 6(b) states that a court "may not extend the time for taking any action under" Rule 59(b). The Supreme Court has held that Rule 6(b), when applicable, "prohibits the extension of the time period prescribed." Browder v. Director, Department of Corrections, 434 U.S. 257, 261 n. 5, 98 S.Ct. 556, 559 n. 5, 54 L.Ed.2d 521 (1978); Leishman v. Associated Wholesale Electric Co., 318 U.S. 203, 206 n. 4, 63 S.Ct. 543, 544 n. 4, 87 L.Ed. 714 (1943) (dictum). When a district court grants a new trial without having jurisdiction to do so, an appellate court must correct the decision by mandamus. United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947). Confining courts to the lawful exercise of their jurisdiction is the traditional use of the writ. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). So, the argument concludes, Bailey is entitled to relief.

There are nonetheless two hurdles. The first is that an amendment to the Federal Rules of Civil Procedure raises a question whether the motion was indeed untimely. The second is Eady v. Foerder, 381 F.2d 980 (7th Cir.1967), in which this court held, on similar facts, that the district court has the authority to grant untimely motions. We consider these two issues in turn.


July 12 is 15 days after June 27 (the date judgment was entered), but not all days count. The version of Rule 6(a) that was in effect until the end of July 1985 provided that when the last day falls on a weekend or holiday, the time is extended to the next

Page 1368

business day. Under that rule July 8, a Monday, was the last day. On August 1, 1985, a new version of Rule 6(a) became effective. Under this rule, when the time in question is less than 11 days, Saturdays, Sundays, and holidays never count. Application of the new version of Rule 6(a) yields a terminal date of July 12--two Saturdays, two Sundays, and July 4 are excluded. So the timeliness of the motion depends on which version of Rule 6(a) applies.

We held in United States v. Kimberlin, 776 F.2d 1344 (7th Cir.1985), that the amendment to Fed.R.Crim.P. 35(b) that went into effect on August 1, 1985, did not revive a motion that became time-barred at some earlier date. That holding does not necessarily preclude retroactive application of the new Rule 6(a). We relied, in part, on the fact that Rule 35(b) allocates authority between court and Parole Commission, an allocation that would be disturbed by permitting a court in 1985 to act in a case that had passed in 1983 to the Parole Commission's authority. Kimberlin, supra, 776 F.2d at 1347-48. * Perhaps Rule 6(a) is different in some way. We think not, however. Rules 6 and 59 allocate decisionmaking authority between the district court and the court of appeals. Once the time prescribed for a motion lapses, the parties' recourse lies in appeal rather than continued importuning of the district judge. Jurisdictional rules are designed to work in mechanical fashion. United States v. MacDonald, 435 U.S. 850, 857 & n. 6, 98 S.Ct. 1547, 1551 & n. 6, 56 L.Ed.2d 18 (1978); Exchange National Bank v. Daniels, 763 F.2d 286, 290-93, reheard in part, 768 F.2d 140 (7th Cir.1985). It would be unfortunate if parties were never sure which court had jurisdiction because of the possibility that the time schedules would be changed at a later date. Here, as in Kimberlin, we conclude that the timeliness of a motion must be determined by the timetables in effect when the motion was filed. The motion was therefore untimely.


Eady holds that when a judge extends the time within which to file an application for a new trial, and counsel relies to his detriment on that extension, the "unique circumstances" of this reliance allow the court to dispose of the motion before it. In this case the district judge, true to his word, granted counsel more time than the rules allow. The court then held, citing Eady, that it was entitled to rule on the resulting untimely motion because of counsel's reliance on the extension.

Before this court, however, counsel for Andrews frankly admitted that, the day after the district judge granted him additional time, he researched the question whether the judge had the authority to extend the ten-day limitation for filing a motion for a new trial. He apparently read--or more properly misread--Eady as permitting a district court to extend the time despite the strictures of the Rules. If counsel had read Eady correctly, he would have recognized that the district judge had no authority to extend the time. Eady simply creates an equitable exception to the rigid time limitation when a lawyer, not knowing the law, actually relies on the affirmative misstatement of the district judge. See Marane, Inc. v. McDonald's Corp., 755 F.2d 106, 111 n. 2 (7th Cir.1985). See also Needham v. White Laboratories, Inc., 454 U.S. 927, 102 S.Ct. 427, 70 L.Ed.2d 237 (1981) (Rehnquist, J., dissenting from the denial of certiorari) (actual reliance is an element of the "unique circumstances" exception to jurisdictional rules). If counsel had read Eady correctly, he would have realized that it was incumbent upon him to seek clarification. In short, it is clear that it was not the judge's misstatement but counsel's misreading of the law that led to his failure to file on time.

Page 1369

Our decision in Eady does not apply when counsel understand in fact that a motion for a new trial must be filed within 10 days. The district court therefore exceeded its jurisdiction in granting a new trial, and Bailey is entitled to a writ of mandamus. The district court must vacate its order setting the case for a new trial, and it must enter a fresh judgment on the jury's verdict. Andrews may take a timely appeal from this judgment. See Needham v. White Laboratories, Inc., 639 F.2d 394, 397-98 (7th Cir.1981). We express no opinion whether Andrews may have grounds for a motion under Fed.R.Civ.P. 60(b). See Marane, supra, 755 F.2d at 111-12; 11 Wright & Miller, Federal Practice & Procedure Sec. 2812 at pp. 86-87 (1973).

The writ of mandamus will issue.

EASTERBROOK, Circuit Judge, concurring.

The facts of Eady were all but identical to the facts of this case. After entering judgment on a jury's verdict, the district court filed an order stating: "Leave to plaintiff to file any and all post trial motions with brief and written argument in support thereof within 30 days." Plaintiffs filed their motion for a new trial 28 days after the entry of judgment; the court granted the motion; this court held that the district court "properly entertained the motion" (380 F.2d at 981). The court relied on " 'unique circumstances' present in the case at bar" (ibid.). The "circumstance" was that the district court gave the plaintiff more time, and this "was justifiable excuse for plaintiffs' failure to file their motion within ten days" (ibid.).

The difficulty with this conclusion is that no excuse, "justifiable" or otherwise, permits an extension of time under Rules 6(b) and 59(b). A judge's extension of time cannot permit the filing of a late motion; the whole point of Rule 6(b) is to say that it does not. The judge's violation of the rule against extensions cannot be a "unique circumstance" permitting an extension.

The panel in Eady apparently was confused about the role of justifiable neglect and detrimental reliance. It cited as authority two cases, Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), and Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964). Wolfsohn is a summary disposition that cites only Harris and Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). Harris, in turn, dealt with a finding under Fed.R.Civ.P. 73(a) (now Fed.R.App.P. 4(a)), which expressly allowed a district court to extend the time within which to file a notice of appeal. The district court, acting before expiration of the...

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