The Drop-Dead Deadline to File a Rule 59 Motion
August 13, 2019 § 3 Comments
A motion to alter or amend a judgment per MRCP 59(e) must be filed within ten days of the date when the judgment is entered or it is untimely.
The COA’s decision in Barbaro v. Smith, about which we posted yesterday, includes this reminder:
¶62. Rule 59(e) of the Mississippi Rules of Civil Procedure states that “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” M.R.C.P. 59(e) (emphasis added). “This ten-day requirement is absolute, and the court is not permitted to extend this time period.” Wilburn v. Wilburn, 991 So. 2d 1185, 1190-91 (¶11) (Miss. 2008) (quotation marks omitted). A motion is “filed” when it is received by the clerk—not when it is placed in the mail. Massey v. Oasis Health & Rehab of Yazoo City LLC, 269 So. 3d 1242, 1250 (¶16) (Miss. Ct. App. 2018). Barbaro’s motion to alter or amend the judgment was filed twenty-two days after the judgment was entered. Therefore,
the chancellor correctly held that it was untimely.
Two crucially important points: (1) the judge cannot extend the time to file; and (2) the motion is not filed until it is actually received by the clerk.
Oh, and keep in mind that if you file a R59 motion later than 10 days after entry of the judgment, it will be treated as a R60 motion, which does not have the effect of tolling the time to appeal.