George E. Simmons v. John S. Ghent, 970 F.2d 392 (7th Cir. 1992). · Go Syfert
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George E. Simmons v. John S. Ghent, 970 F.2d 392 (7th Cir. 1992). Cases Citing This Book View Copy Cite
36 citation events (8 in the last 25 years) across 12 distinct courts.
Strongest positive: Antoine Simmons v. Gregory McCulloch, No. 12-3004 (7th Cir. Nov. 15, 2013)
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At page 393 Determining timeliness of rule 59(e) motions for pro se prisoners27 citing casesholding that the Houston filing rule that an incarcerated pro se litigant files a notice of appeal on the day he delivers it to prison authorities for forwarding to the district court applies equally to other filings, including Rule 59(e) motions5 citing courts put it this way · 25 listed here
  • Antoine Simmons v. Gregory McCulloch, No. 12-3004 (7th Cir. Nov. 15, 2013).unpublished
    See Houston v. Lack, 487 U.S. 266, 276 (1988); Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir. 1992).
  • Simmons v. McCulloch, 546 F. App'x 579 (7th Cir. 2013).unpublished
    See Houston v. Lack, 487 U.S. 266, 276 , 108 S.Ct. 2379 , 101 L.Ed.2d 245 (1988); Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992).
  • Koelling v. Livesay, 239 F.R.D. 517 (S.D. Ill. 2006).published
    Co. of N. Am., 317 F.3d 773, 775 (7th Cir.2003); SEC v. Van Waeyenberghe, 284 F.3d 812, 814 (7th Cir.2002); Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992). 4 Turning then to the standard under which a request for relief from a judgment…
  • In Re Luedtke, 337 B.R. 918 (Bankr. E.D. Wis. 2005).published
    In Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992), the Seventh Circuit assumed that the mailbox rule applied to all prisoner district court filings, including those under Rule 59(e).
  • Richard L. Fogel, Cross-Appellee v. Gordon & Glickson, P.C., 393 F.3d 727 (7th Cir. 2004).published
    Co. of North America, 317 F.3d 773, 775 (7th Cir.2003); American Federation of Grain Millers, Local 21 v. Cargill Inc., 15 F.3d 726, 728 (7th Cir.1994); Cody, Inc. v. Town of Woodbury, 179 F.3d 52, 56 (2d Cir.1999) (per curiam); cf. Simmon…
  • Moore v. Twomey, 16 Cal. Rptr. 3d 163 (Cal. Ct. App. 2004).published
    (E.g., Simmons v. Ghent (7th Cir. 1992) 970 F.2d 392, 393 [Houston “applies to other filings, including a [Fed.
  • Willie Edwards, Jr. v. United States, 266 F.3d 756 (7th Cir. 2001).published
    In other cases, such as Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992), we assumed that the mailbox rule applies to all prisoner district court filings, including those under Rule 59(e).
  • Edwards, Willie v. United States, No. 99-4162 (7th Cir. Sept. 24, 2001).published
    In other cases, such as Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir. 1992), we assumed that the mailbox rule applies to all prisoner district court filings, including those under Rule 59(e).
  • United States Ex Rel. Gonzalez v. DeTella, 6 F. Supp. 2d 780 (N.D. Ill. 1998).published
    (applying the mailbox rule of Houston v. Lack to pro se prisoner’s filing of a Rule 59(e) motion for reconsideration)
  • In the Matter of Vms Ltd. P'ship Sec. Litig. Appeal of John R. Kirwan, Carolyn Kirwan, Caroline S. Kirwan, 142 F.3d 441 (7th Cir. 1998).unpublished
    See Fed.R.App.P. 4(a)(4); Simmons v. Ghent, 970 F.2d 392, 393 (7th Cir.1992).
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George E. SIMMONS, Plaintiff-Appellant,
v.
John S. GHENT, Et Al., Defendants-Appellees
91-3117.
Docket on CourtListener (RECAP)
Court of Appeals for the Seventh Circuit.
Aug 10, 1992.
Published opinion
970 F.2d 392
1992 U.S. App. LEXIS 18245
1992 WL 188857
George E. Simmons, pro se., Rosalyn B. Kaplan, Asst. Atty. Gen., Chicago, Ill., for defendants-appellees.
Cudahy, Posner, Wood.
Cited by 34 opinions  |  Published
POSNER, Circuit Judge.

We issued a rule to show cause why the appeal should not be dismissed as premature. The district court had entered a minute order dismissing this prisoner’s civil rights case as frivolous, before he had served his complaint on any of the defendants. No separate judgment order was entered as required by Fed.R.Civ.P. 58, but, the court’s intention to terminate the litigation being clear, the minute order was an appealable judgment under Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam); and the appellant duly filed his notice of appeal within the thirty days allowed for such a filing. However, within ten days after the entry of the minute order, the[*393] appellant had filed a motion to reconsider. The motion was not actually filed with the district court until the eleventh business day after the entry of the minute order. But in pro se prisoner cases a notice of appeal is deemed timely if lodged with the prison authorities, for forwarding to the district court, within the time permitted for an appeal. Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 2382, 101 L.Ed.2d 245 (1988). We assume that the same rule applies to other filings, including a Rule 59(e) motion.

A timely Rule 59(e) motion suspends the time for appealing, and a notice of appeal filed while such a motion is pending is premature and a nullity. Fed. R.App.P. 4(a)(4). Any motion seeking to alter or amend the judgment, however the motion be labeled, is deemed a Rule 59(e) motion, provided it is served within ten days. Charles v. Daley, 799 F.2d 343, 347 (7th Cir.1986). The only rub is that the appellant’s motion, though filed within ten days, was not served within ten days. In fact it was never served. So there was no timely Rule 59(e) motion; the notice of appeal filed before the motion was decided was therefore not premature; and since the notice was timely, the appeal will not be dismissed.

All this would hardly be worth saying were it not for a brace of cases in other circuits which hold that where the appellant’s suit is dismissed as frivolous before his complaint has been served on any defendant, the requirement of serving a Rule 59(e) motion is dispensed with; the motion is timely if filed within the prescribed period, and if so filed it knocks out any notice of appeal filed before the motion is acted on. Craig v. Lynaugh, 846 F.2d 11 (5th Cir.1988); Welch v. Folsom, 925 F.2d 666, 669 (3d Cir.1991). Craig expressed concern lest defendants in prisoner cases be overwhelmed with paper if the Rule 59(e) motion must be served in order to be effective. This is unpersuasive; service imposes no obligation to respond. Welch, which reached a similar result without citing Craig, rested decision on two other grounds: that since the district court had dismissed the complaint without the presence of the defendant, the court should be permitted to reconsider that dismissal by the same procedure; and that the plaintiff might not be able to serve the motion to reconsider by mail, since the use of the procedure in Fed.R.Civ.P. 5(b) presupposes that the court has obtained jurisdiction over the parties. We do not understand the second ground. Rule 5(b) prescribes how service may be made. Rule 5(a), which lists the documents that must be served, states that “every written motion ... shall be served upon each of the parties.” There is no requirement that the court have obtained jurisdiction over the parties. Rule 4(b) requires that the summons name the “parties,” even though the court ordinarily does not obtain jurisdiction over a party defendant until the summons and complaint has been served on him.

The first ground in Welch has commonsense appeal, but we cannot find in the applicable civil and appellate rules any purchase for relaxing the requirement that a motion under Rule 59(e) be served on the defendant within ten days even if the defendant has not been served previously. If the motion is not served within that time, it is untimely and does not block an appeal. The absence of any other reported cases besides the two we have cited suggests that applying Rule 59(e) in accordance with its literal language has not been a source of hardship.

Because our decision creates an intercir-cuit conflict, we have circulated this opinion in advance of publication to all the active judges of this court. 7th Cir.R. 40(f). None voted to hear the case en banc.