U.S. Court of Appeals for the Tenth Circuit, 1987

Stauber v. Kieser

U.S. Court of Appeals for the Tenth Circuit · Decided February 2, 1987

810 F.2d 1 (Federal Reporter, Second Series)

Counsel

W.H. Utz, Jr., of Utz, Litvak, Thackery, Utz & Taylor, St. Joseph, Mo., for plaintiff s-appellants., Thomas G. Kokoruda and George A. Barton of Shughart, Thomson & Kilroy, Kansas City, Mo., and Jack R. Euler of Euler & Euler, Troy, Kan., for defendants-appel-lees.

Cases that cite this one

24 later published cases cite this decision. The 21 that cite it most often are listed here.

Roland Collard, and Mark Oakes, Bruce Oakes, Russell Parks, and Dale Larson v. United States (10th Cir. 1993)
Home & Family, Inc. v. England Resources Corp. (In re Home & Family, Inc.) (10th Cir. 1996)
Weitz v. Lovelace Health System, Inc. (10th Cir. 2000)
Schroeder v. Urban (Kan. 1988)
Johnson v. American Cyanamid Co. (Kan. 1988)
United States v. Garduño (10th Cir. 2007)
Woods v. Wal-Mart (10th Cir. 1997)
United States v. Leopard (10th Cir. 1996)
In re Weston (10th Cir. 1994)
In re Wiston XXIV Ltd. Partnership (10th Cir. 1994)
United States v. Borden Financial Corp. (United States District Court Eastern District of Louisiana 1994)
Weston v. Mann (In re Weston) (10th Cir. 1994)
TBG, Inc. v. Bendis (10th Cir. 1994)
In re Tim THEMY, Dba Brinecell Manufacturing Co., Debtor. Tim THEMY, Dba Brinecell Manufacturing Co., Appellant, v. Jason YU, Appellee (10th Cir. 1993)
Payton v. Spruiell (10th Cir. 1992)
Raymond J. Van Skiver Alma L. Van Skiver v. United States of America and John Does (10th Cir. 1992)
Nichi Aki Senjuro v. Dr. Murray (10th Cir. 1991)
Frain v. District of Columbia (D.C. 1990)
Kraus v. Consolidated Rail Corp. (3d Cir. 1990)
Winkel Group v. Frontier Airlines (In re Frontier Airlines) (United States District Court for the District of Colorado 1989)
Meral Smith v. Melvin H. Evans (3d Cir. 1988)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

PER CURIAM.

Defendants-appellees have filed a motion to dismiss this appeal as untimely. For the reasons hereinafter stated, this motion is denied.

In the case below, the district court granted defense motions for summary judgment on April 17, 1980. Since May 17 fell on a Saturday, the thirty-day time limit for filing an appeal fell on Monday, May 19. On April 30, plaintiffs sought to extend the time to file a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment. The district court granted an extension to May 10, a Saturday, and the Rule 59 motion itself was filed by plaintiffs the following Monday, May 12. The motion was subsequently denied on November 21; a notice of appeal followed on December 19.

Defendants contend that since the Rule 59 motion was untimely, i.e., filed beyond the ten days allowed by rule, it was ineffective to toll the thirty-day appeal period, which expired in May.

District courts are without jurisdiction to extend the time to file motions under Rule 59(e). Fed.R.Civ.P. 6(b); Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). However, it is here obvious that plaintiffs relied to their detriment upon the district court’s statements and action. That is, by granting an extension and then accepting the Rule 59(e) motion, the district court led plaintiffs to believe that those actions were properly done. As a consequence, plaintiffs permitted the thirty-day appeal period to expire on May 19 without filing their notice of appeal. In these “unique circumstances,” it would *2now work a great hardship on plaintiffs to dismiss the appeal as untimely. Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). The court is of the opinion that to do so would not be in the best interests of justice.

Consequently, the motion to dismiss this appeal as untimely is denied.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.