Sinett Inc. v. Blairex Laboratories, Inc., 90-1697
| Decision Date | 02 August 1990 |
| Docket Number | No. 90-1697,90-1697 |
| Citation | 909 F.2d 253 |
| Parties | SINETT INC. and Lawrence Bober, Plaintiffs-Appellants, v. BLAIREX LABORATORIES, INC. and Michael P. Hull, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Francine Schwartz, Arlington Heights, Ill., for plaintiffs-appellants.
Michael Padden, Gardner, Carton & Douglas, Chicago, Ill., Russell T. Clarke, Jr., Emswiller, Williams, Noland & Clarke, Indianapolis, Ind., for defendants-appellees.
Before CUDAHY, POSNER and COFFEY, Circuit Judges.
The defendants in this breach of contract suit have moved to dismiss the plaintiffs' appeal on the ground that by failing to make a timely motion for a new trial the plaintiffs failed to stop the running of the time for filing their notice of appeal. They filed the notice of appeal more than two months after judgment was entered against them, and this was too late unless the motion for a new trial was timely. It was not. The motion for a new trial must be served, not filed, within ten days of the judgment, Fed.R.Civ.P. 59(b); Sadowski v. Bombardier Ltd., 527 F.2d 1132, 1135 (7th Cir.1975) (per curiam), and the time cannot be extended. Fed.R.Civ.P. 6. The only attempt at service within the ten days was by slipping a copy of the motion for new trial under the door of the law office of the defendants' counsel, after hours, when no one was there. This was not proper service. Rule 5(b), in specifying the various methods by which service can be made, provides that "if the office is closed ..., leaving it at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein" is sufficient. But nowhere does the rule allow service to be made simply by inserting the paper to be served into the closed office. As the defendants point out in their motion to dismiss, the plaintiffs employed none of the methods of service authorized by Rule 5(b). The plaintiffs, who apparently are unaware of the provisions of that rule, make crystal clear in their response to the motion to dismiss that they violated the rule, for they state--as if it helped them rather than sank them--that the motion for a new trial was "served" by being slipped under the office door after the office had closed for the day. No excuse for violating the rule is offered, no doctrine of excusable neglect invoked. A clear rule was inexcusably violated by counsel in...
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Schultz Mfg. Fabricating Co., Matter of
...to alter or amend judgment must be served, not filed, within ten days of entry of judgment) (emphasis added); cf. Sinett Inc. v. Blairex Lab., Inc., 909 F.2d 253 (7th Cir.1990) (Fed.R.Civ.P. 59(b)); Sadowski v. Bombardier Ltd., 527 F.2d 1132, 1135 (7th Cir.1975) (same). Despite this mistake......
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