Lee E. Allen, Plaintiff-Appellee, v. Dr. Allen L. Ault, Etc., Et Al., Defendants-Appellants., 564 F.2d 1198 (5th Cir. 1977)
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Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., Richard L. Chambers, Deputy Atty. Gen., Robert S. Stubbs, II, Exec. Asst. Atty. Gen., John C. Walden, Senior Asst. Atty. Gen., Atlanta, Ga., for defendants-appellants.
Lee E. Allen, pro se.
Edward E. Landers, pro se.
Robert H. Veal, pro se.
Hugh Don Smith, pro se.
Carol Clark, Atlanta, Ga. (Court-appointed), for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before JONES, GODBOLD and GEE, Circuit Judges.
PER CURIAM:
This appeal involves the application of Rule 59(b), F.R.Civ.P.1 The issue is whether the ten-day limit applies to filing as well as to service of the motion. The trial court dismissed defendants' motion for new trial after finding that the motion, served eight days after entry of judgment but filed one day after the ten-day limit on service, was not timely within the requirement of Rule 59(b). We hold that the ten-day limit of Rule 59(b) does not determine the time for filing of a motion for new trial.
Neither the Supreme Court nor the Fifth Circuit has confronted this issue. A per curiam opinion in Martin v. Wainwright, 469 F.2d 1072 (CA5, 1972), held untimely a Rule 59(b) motion filed 72 days after entry of judgment but did not mention the time that the motion was served. Similarly, the per curiam opinion in Albers v. Gant,
Federal courts and commentators who have confronted this issue have concluded that Rule 59(b) applies to time of service and not to time of filing and that Rule 5(d), F.R.Civ.P., governs time of filing. See Sadowski v. Bombardier Ltd., 527 F.2d 1132 (CA7, 1975); Claybrook Drilling Co. v. Divanco, Inc., 336 F.2d 697 (CA10, 1964); 2 Moore's Federal Practice, P 5.10, p. 1381 (2d ed. 1977); 11 Wright & Miller, Federal Practice and Procedure: Civil § 2812 n. 47 (1973). See also Keohane v. Swarco, Inc., 320 F.2d 429 (CA6, 1963). We find these authorities persuasive.
Accordingly, the order of dismissal is REVERSED and the cause REMANDED for a determination whether the filing of the motion was timely within Rule 5(d), F.R.Civ.P.
1 "A motion for a new trial shall be served not later than 10 days after the entry of the judgment."
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This document cites
- U.S. Court of Appeals for the Sixth Circuit - William H. Keohane, Plaintiff-Appellant, v. Swarco, Inc., Amerace, Inc., Morton G. Nussbaum, Fred C. Ward, Joseph Halberstein, William C. Loughley and Herbert Loewy, Defendants-Appellees (Two Cases)., 320 F.2d 429 (6th Cir. 1963)
- U.S. Court of Appeals for the Tenth Circuit - Claybrook Drilling Company, a Corporation, Appellant, v. Divanco, Inc., and Henry D. Hughes, Appellees. in the Matter of Divanco, Inc., Debtor., 336 F.2d 697 (10th Cir. 1964)
- U.S. Court of Appeals for the Fifth Circuit - John T. Martin, Petitioner-Appellant, v. Louis Wainwright, Director, Division of Corrections, Etc., Et Al., Respondents-Appellees., 469 F.2d 1072 (5th Cir. 1973)
- U.S. Court of Appeals for the Seventh Circuit - Pamela Sue Rulo Sadowski, Plaintiff-Appellee, v. Bombardier Limited, Defendant-Appellant., 527 F.2d 1132 (7th Cir. 1975)
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