W. Indus., Inc. v. Newcor Canada Ltd., 709 F.2d 16 (7th Cir. 1983). · Go Syfert
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W. Indus., Inc. v. Newcor Canada Ltd., 709 F.2d 16 (7th Cir. 1983). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1990 · …post-judgment motions filed within 10 days should where possible be construed as rule 59(e) motions to avoid otherwise endless hassles over proper characterization. at p. 17 ✓
30 citation events (3 in the last 25 years) across 15 distinct courts.
Strongest positive: Rasho v. Walker (ilcd, 2023-11-30)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) Rasho v. Walker
C.D. Ill. · 2023 · confidence medium
Indus., Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir. 1983) (noting that the Rule 59(e) motion was filed after a notice of appeal yet reasoning that “[t]he immediate filing of a notice of appeal cannot be allowed to defeat the appellee’s rights under Rule 59(e)”).
cited Cited as authority (rule) Scott v. Bender
N.D. Ill. · 2013 · confidence medium
Ltd., 709 F.2d 16, 17 (7th Cir.1983).
cited Cited as authority (rule) In re Johnson
Bankr. N.D. Ill. · 2012 · confidence medium
Ltd., 709 F.2d 16, 17 (7th Cir.1983)).
cited Cited as authority (rule) Koch v. Bridge
S.D. Ind. · 1993 · confidence medium
Western Industries, Inc. v. Newcor Cana da, Ltd., 709 F.2d 16, 17 (7th Cir.1983) (per curiam). .
discussed Cited as authority (rule) Clarendon Ltd. v. Eddie W. Foster
6th Cir. · 1993 · confidence medium
They determined that there was no jurisdiction to review the underlying judgment 5 See also Cosgrove v. Smith, 697 F.2d 1125, 1127-28 (D.C.Cir.1983); Foman v. Davis, 292 F.2d 85, 87 (1st Cir.1961), rev'd on other grounds, 371 U.S. 178 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir.1982); Rankin v. Heckler, 761 F.2d 936, 942 (3d Cir.1985); Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669-70 (5th Cir.), cert. denied, 479 U.S. 930 (1986); Western Industries, Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983) (per curiam); Seshachalam v. Creighton …
discussed Cited as authority (rule) David G. Schonback v. United States
7th Cir. · 1993 · confidence medium
Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983), that "[p]ost judgment motions filed within 10 days should where possible be construed as Rule 59(e) motions to avoid otherwise endless hassles over proper characterization." See also Martinez v. Sullivan, 874 F.2d 751, 753 (10th Cir.1989); Sanders v. Clemco Indus., 862 F.2d 161, 169 (8th Cir.1988).
cited Cited as authority (rule) Herzog Contracting Corporation v. McGowen Corporation
7th Cir. · 1992 · confidence medium
Western Industries, Inc. v. Newcor Canada, Ltd., 709 F.2d 16, 17 (7th Cir.1983) (per curiam).
cited Cited as authority (rule) Kress Road Partnership v. First Federal Savings & Loan Ass'n of Elgin (In Re Kress Road Partnership)
Bankr. N.D. Ill. · 1991 · confidence medium
Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986); Western Industries, Inc. v. Newcor Canada Limited, 709 F.2d 16, 17 (7th Cir.1983); BNT Terminals at 977.
discussed Cited as authority (rule) Martinez v. Sullivan
10th Cir. · 1989 · confidence medium
Further, “post-judgment motions filed within ten days of the final judgment should, where possible, be construed as Rule 59(e) motions to ‘avoid otherwise endless hassles over proper characterization.’ ” Id. at 703-04 (quoting Western Indus., Inc. v. Newcor Canada, Ltd., 709 F.2d 16, 17 (7th Cir.1983)).
discussed Cited as authority (rule) Martinez v. Sullivan
10th Cir. · 1989 · confidence medium
Further, "post-judgment motions filed within ten days of the final judgment should, where possible, be construed as Rule 59(e) motions to 'avoid otherwise endless hassles over proper characterization.' " Id. at 703-04 (quoting Western Indus., Inc. v. Newcor Canada, Ltd., 709 F.2d 16, 17 (7th Cir.1983)). 11 Our review of the district court's Remedial Order and the appellees' motion reveals that, under the standard outlined above, the motion must be considered to fall under Rule 59(e).
discussed Cited as authority (rule) Yvonne Dalton v. First Interstate Bank of Denver, a National Banking Association
1st Cir. · 1988 · confidence medium
Further, we agree with the Seventh Circuit’s reasoning that post-judgment motions filed within ten days of the final judgment should, where possible, be construed as Rule 59(e) mo *704 tions to “avoid otherwise endless hassles over proper characterization.” Western Inds., Inc. v. Newcor Canada, Ltd., 709 F.2d 16, 17 (7th Cir.1983).
discussed Cited as authority (rule) Terry Wayne Sanders v. Clemco Industries and Ingersoll-Rand Company (2×)
8th Cir. · 1988 · confidence medium
See, e.g., Venable v. Haislip, 721 F.2d 297, 299 (10th Cir.1983) (per curiam); Western Indus. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983) (per curiam).
discussed Cited as authority (rule) Tesoro Savings & Loan Ass'n v. Fargo Financial, Inc. (In Re Fargo Financial, Inc.)
Bankr. N.D. Ga. · 1987 · confidence medium
As long as the Rule 59(e) motion is filed within the prescribed time limits, the appellant “runs the risk that ... [the appellate court’s] jurisdiction over his appeal will be divested by the other party’s filing a Rule 59(e) motion, as he is entitled to do, within the same 10-day period.” Western Industries, Inc. v. Newcor Canada Limited, 709 F.2d 16, 17 (7th Cir.1983).
cited Cited as authority (rule) Allan G. Charles v. Richard M. Daley, State's Attorney, and Eugene F. Diamond, Intervening
7th Cir. · 1986 · confidence medium
E.g., Western Industries, Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983).
discussed Cited as authority (rule) Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., Third-Party and M/v Charles D, Cross-Appellant v. Southern Pacific Transportation Co., Third-Party Appellant-Cross-Appellee. Southern Pacific Transportation Co. v. M/v I.C. Hoskins, Her Engines, Boilers, Tackle, Etc., in Rem, Southern Pacific Transportation Co. v. M/v Iberville, Her Engines, Boilers, Tackle, Etc., in Rem, Southern Pacific Transportation Co., Cross-Appellee v. M/v Charles D, Her Engines, Boilers, Tackle, Etc., in Rem, and D & G Boat Rentals, Inc., Cross-Appellants. Southern Pacific Transportation Co., Cross-Appellee v. M/v Marion Hagestad, Cross-Appellants
3rd Cir. · 1986 · confidence medium
Accord Cosgrove v. Smith, 697 F.2d 1125, 1127-28 (D.C.Cir.1983); Foman v. Davis, 292 F.2d 85, 87 (1st Cir.1961), rev'd on other grounds, 371 U.S. 178 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir.1982); Rankin v. Heckler, 761 F.2d 936, 942 (3d Cir.1985); Western Industries, Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983) (per curiam); Seshachalam v. Creighton University School of Medicine, 545 F.2d 1147, 1147 (8th Cir.1976), cert. denied, 433 U.S. 909 , 97 S.Ct. 2974 , 53 L.Ed.2d 1093 (1977); Sea Ranch Association v. California Co…
discussed Cited as authority (rule) Harcon Barge Co. v. D & G Boat Rentals, Inc.
5th Cir. · 1986 · confidence medium
Accord Cosgrove v. Smith, 697 F.2d 1125, 1127-28 (D.C.Cir.1983); Foman v. Davis, 292 F.2d 85, 87 (1st Cir.1961), rev'd on other grounds, 371 U.S. 178 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir.1982); Rankin v. Heckler, 761 F.2d 936, 942 (3d Cir.1985); Western Industries, Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983) (per curiam); Seshachalam v. Creighton University Schoo’ of Medicine, 545 F.2d 1147, 1147 (8th Cir.1976), cert. denied, 433 U.S. 909 , 97 S.Ct. 2974 , 53 L.Ed.2d 1093 (1977); Sea Ranch Association v. California …
cited Cited "see" Milton B. Russell v. Delco Remy Division of General Motors Corporation, Saegertown Manufacturing Company and Jordan Chalmer
7th Cir. · 1995 · signal: see · confidence high
See Western Industries, Inc. v. Newcor Canada Limited, 709 F.2d 16, 17 (7th Cir.1983); Charles, 799 F.2d at 348 .
discussed Cited "see" Yorke v. Citibank, N.A. (In Re BNT Terminals, Inc.)
Bankr. N.D. Ill. · 1991 · signal: accord · confidence high
Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986); accord Western Industries, Inc. v. Newcor Canada Limited, 709 F.2d 16, 17 (7th Cir.1983) (per curiam) (“Post-judgment motions filed within 10 days should, where possible, be construed as Rule 59(e) motions ...”).
discussed Cited "see" Lorenzon v. Employees Retirement Plan Of The Sperry And Hutchinson Company
7th Cir. · 1990 · signal: see · confidence high
See Western Indus., Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983) ("Post-judgment motions filed within 10 days should where possible be construed as Rule 59(e) motions to avoid otherwise endless hassles over proper characterization."). 41 Further, in Western Industries, we expressly warned litigants not to file their notices of appeal before the time for making a post-judgment motion has elapsed: "We therefore caution parties that do not want to run the risk of having their appeals dismissed as premature to wait 10 days before filing the notice of appeal." 709 F.2d at 17 .
discussed Cited "see" Lorenzen v. Employees Retirement Plan of the Sperry & Hutchinson Co.
7th Cir. · 1990 · signal: see · confidence high
See Western Indus., Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir.1983) (“Post-judgment motions filed within 10 days should where possible be construed as Rule 59(e) motions to avoid otherwise endless hassles over proper characterization.”).
discussed Cited "see" In Re Republic Fabricators, Inc. (2×)
Bankr. N.D. Ind. · 1989 · signal: accord · confidence high
Accord, Western Industries, Inc. v. Newcor Canada Limited, 709 F.2d 16 (7th Cir.1983) (per curiam) (“Post-judgment motions filed within 10 days should, where possible, be construed as Rule 59(e) motions to avoid otherwise endless hassles over proper characterization.” Id., at 17 ).
discussed Cited "see" George L. Barry v. Otis R. Bowen
9th Cir. · 1987 · signal: see · confidence high
See Western Industries, Inc. v. Newcor Canada, Ltd., 709 F.2d 16 (7th Cir.1983) (set-off of counterclaim); Cosgrove v. Smith, 697 F.2d 1125, 1127-28 (D.C.Cir.1983) (clarification of court's ruling on a claim not mentioned in the judgment); First National Bank in Greenwich v. National Airlines, Inc., 167 F.Supp. 167 (S.D.N.Y.1958) (addition of the words “with costs to the defendants”).
cited Cited "see" Pentucket Manor Chronic Hospital, Inc. v. Rate Setting Commission
Mass. · 1985 · signal: see · confidence high
See Western Indus., Inc. v. Newcor Canada Ltd., 709 F.2d 16, 17 (7th Cir. 1983); Dove v. Codesco, 569 F.2d 807, 809 (4th Cir. 1978); Foman v. Davis, 292 F.2d 85, 87 (1stCir. 1961).
cited Cited "see, e.g." Sunstream Jet Express, Inc., a Delaware Corporation v. International Air Service Co., Ltd., a California Corporation
7th Cir. · 1984 · signal: see also · confidence medium
See also Western Industries, Inc. v. Newcor Canada Limited, 709 F.2d 16, 17 (7th Cir.1983) (per curiam); A.D.
Retrieving the full opinion text from the archive…
WESTERN INDUSTRIES, INC., Plaintiff-Appellee,
v.
NEWCOR CANADA LIMITED, Defendant-Appellant
83-1657.
Court of Appeals for the Seventh Circuit.
Jun 13, 1983.
709 F.2d 16
1983 U.S. App. LEXIS 26809
Stephen T. Jacobs and Jeffrey P. Clark, Reinhart, Boemer, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, Wis., for defendant-appellant., John S. Skilton and David A. Baker, Foley & Lardner, Milwaukee, Wis., for plaintiff-appellee.
Bauer, Wood, Posner.
Cited by 25 opinions  |  Published
PER CURIAM.

This motion to dismiss the defendant’s appeal raises the recurrent — one might almost say incessant — problem of distinguishing between motions under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. See A.D. Weiss Lithograph Co. v. Illinois Adhesive Products Co., 705 F.2d 249 (7th Cir.1983) (per curiam).

The district court entered a final judgment on April 4, 1983, awarding the plaintiff damages on its claim and the defendant a smaller sum as damages on its counterclaim. The defendant filed a notice of appeal to this court on April 8. On April 13 the plaintiff moved the district court, pursuant to Rule 59(e), for an order amending its judgment to provide that the award to the defendant on the counterclaim “be set off and satisfied by a portion of the recovery of” the plaintiff on its claim. The[*17] plaintiff asks us to dismiss the defendant’s appeal on the ground that the filing of the Rule 59(e) motion divested us of jurisdiction of the appeal. The defendant concedes the general principle, on which see, e.g., Inryco, Inc. v. Metropolitan Engineering Co., 708 F.2d 1225, 1232 (7th Cir.1983), but argues that the plaintiff’s Rule 59(e) motion is really a Rule 60(b) motion, and therefore that the motion to dismiss the appeal should be denied, since the filing of a Rule 60(b) motion does not affect the appeal.

Post-judgment motions filed within 10 days should where possible be construed as Rule 59(e) motions to avoid otherwise endless hassles over proper characterization. The possibilities of abusive use of post-judgment motions to delay appeal are slight since 10 days is a short time and cannot be extended, see Rule 6(b). Of course there are some limitations on construing a post-judgment motion as a Rule 59(e) motion; in particular, a motion for an extension of time in which to file a motion to alter or amend the judgment may not be construed as a Rule 59(e) motion, see A.D. Weiss, supra, 705 F.2d at 250, lest Rule 6(b) be circumvented; but that is not a problem here.

The plaintiff wanted the district judge to provide in the judgment for a set-off. This was a request to alter the judgment and was therefore a proper request to make in a Rule 59(e) motion. The only peculiarity of this case is that the Rule 59(e) motion was filed after the defendant had filed its notice of appeal. The defendant argues vigorously that the motion was filed purely to delay the appeal. However, if a party that wants to appeal a district court judgment files his notice of appeal within 10 days of entry of judgment, as the defendant did here, he runs the risk that our jurisdiction over his appeal will be divested by the other party’s filing a Rule 59(e) motion, as he is entitled to do, within the same 10-day period. The immediate filing of a notice of appeal cannot be allowed to defeat the appellee’s rights under Rule 59(e). It is unusual for the appellee— the winner below — to be filing a Rule 59(e) motion, but by no means unheard of. A prevailing plaintiff may, for example, want the judge to increase the amount of the judgment, as happened in Western Transport Co. v. E.I. Du Pont de Nemours & Co., 682 F.2d 1233 (7th Cir.1982). Or both parties may as in this case be winners and losers in the district court. We therefore caution parties that do not want .to run the risk of having their appeals dismissed as premature to wait 10 days before filing the notice of appeal.

The appeal is

Dismissed.