Jenkins et al v. Burkey et al

Filing 99

MEMORANDUM AND ORDER, re: doc. 94 . The Court DIRECTS the Clerk of Court to send this order to the Court of Appeals for use in connection with Appeal No. 18-2222. Signed by Judge J. Phil Gilbert on 6/4/2018. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SCOTT JENKINS and RHONDA
STEPHANIE ALEXANDROPOULOS,
Plaintiffs,
Case No. 16-cv-792-JPG-SCW
v.
BRUCE BURKEY, TAYLOR LAW FIRM
PC, JOICE BASS, JENNIFER HOSTETLER
and LEWIS ROCA ROTHGERBER LLP,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the motion to reconsider filed by plaintiff Scott Jenkins
(Doc. 94). Jenkins asks the Court to reconsider its May 2, 2018, order (Doc. 92) granting summary
judgment for defendants Bruce Burkey and Taylor Law Offices, PC on the remaining claims in this
case. The Court entered final judgment the same day (Doc. 93). Jenkins also asks the Court to reopen
the case if necessary for the Court to consider his request for reconsideration.
It is not necessary to reopen the case for the Court to consider Jenkins’ motion, so the Court
declines that request.
The Court further clarifies that it will consider Jenkins’ motion as a motion to vacate the
judgment under Federal Rule of Civil Procedure 60(b) rather than as a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e). A motion to alter or amend a judgment under
Rule 59(e) “must be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
The Court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Jenkins’ 28-day period began to
run the day judgment was entered on the docket sheet—May 2, 2018—and ended on May 30, 2018, 2
days before his motion was received and docketed by the Clerk’s Office. He is not entitled to extend
the 28 days by 3 extra days for service under Rule 6(d) because the 28-day period begins on entry of

judgment, not on its service. Williams v. Illinois, 737 F.3d 473, 475 (7th Cir. 2013) (“We . . . conclude
that Rule 6(d) . . . does not extend the deadline for Rule 59(e) motions.”). Nor is he entitled to the
benefit of the prison “mailbox rule” of Houston v. Lack, 487 U.S. 266, 276 (1988), where his motion
might be deemed filed the day he placed it in the mail; the mailbox rule applies only to incarcerated
people. See Clowdis v. Silverman, 666 F. App’x 267, 271 n.3 (4th Cir. 2016); Kareem v. F.D.I.C., 482
F. App’x 594, 595 (D.C. Cir. 2012). However, any motion for reconsideration filed after the 28-day
deadline will be considered under Rule 60(b) rather than 59(e). Williams, 737 F.3d at 475.
This Rule 60(b) motion filed more than 28 days after entry of judgment does not toll the time
period for filing a notice of appeal, see Fed. R. App. P. 4(a)(4)(A), and Jenkins has filed a timely
notice of appeal 30 days after entry of judgment (Doc. 95), see Fed. R. App. P. 4(a)(1)(A). The Court
retains jurisdiction to deny this Rule 60(b) motion while the case is on appeal, although it lacks
jurisdiction to grant it without further action by the Court of Appeals. See Craig v. Ontario Corp., 543
F.3d 872, 875 (7th Cir. 2008) (describing procedure where the district court is inclined to act on or
grant a motion to reconsider while case is on appeal); Boyko v. Anderson, 185 F.3d 672, 674-75 (7th
Cir. 1999). The briefing schedule for the pending Rule 60(b) motion will be governed by Local Rule
7.1(c).
Because this ruling may clarify jurisdictional issues in the Court of Appeals, the Court
DIRECTS the Clerk of Court to send this order to the Court of Appeals for use in connection with
Appeal No. 18-2222.
IT IS SO ORDERED.
DATED: June 4, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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