In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3468
IBRIHIM K ISWANI,
Plaintiff-Appellant,
v.
P HOENIX S ECURITY A GENCY, INCORPORATED ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-cv-04559—Morton Denlow, Magistrate Judge.
A RGUED S EPTEMBER 11, 2009—D ECIDED O CTOBER 16, 2009
Before B AUER, R OVNER and W ILLIAMS, Circuit Judges.
B AUER, Circuit Judge. Plaintiff-Appellant Ibrihim Kiswani
(“Kiswani”) appeals from the magistrate judge’s order
that denied reconsideration of his post-trial motions.
Because Kiswani failed to meet our quaint rules
on timing of appeals, the magistrate judge’s opinion is
affirmed.
2 No. 08-3468
I. BACKGROUND
Kiswani was arrested outside a nightclub on July 31,
2004, and charged with aggravated unlawful use of a
weapon. After being acquitted of the charge, he brought
suit against several Chicago police officers and others,
including Phoenix Security Agency (“Phoenix”) and
Marcelino Renteria (“Renteria”), one of Phoenix’s employ-
ees, setting forth claims of unlawful arrest, malicious
prosecution, civil conspiracy, violation of due process,
and unlawful deprivation of property.
The parties consented in writing to having Magistrate
Judge Morton Denlow conduct any and all proceedings,
including entry of a final judgment. The magistrate
judge granted summary judgment in favor of Phoenix and
Renteria; the claims against all but one officer, Officer
Cunningham, were resolved prior to trial. At the end of a
two-day jury trial, the judge granted Officer Cunningham’s
motion for judgment as a matter of law on the due
process claim, and the jury returned a verdict in favor
of Officer Cunningham on the malicious prosecution
claim. Judgment was entered in favor of Officer Cunning-
ham and against Kiswani, including costs, on June 16, 2008.
On June 24, 2008, Kiswani filed a“Renewed Motion for
Judgment as a Matter of Law” under Fed. R. Civ. P. 50(b)
and a “Motion for a New Trial” under Fed. R. Civ. P. 59.
Kiswani argued that his trial efforts were prejudiced
when the magistrate judge granted a motion to exclude
certain witnesses from testifying at trial, based on
defense counsel’s misrepresentations that the defense had
not been able to contact these witnesses. On August 20,
2008, the magistrate judge denied Kiswani’s motions.
No. 08-3468 3
On September 12, 2008, Kiswani filed a motion for
waiver of costs and alternatively, for reconsideration of
his previously-filed post-trial motions. In addition to
requesting that the judge deny Officer Cunningham his
costs, Kiswani renewed his complaint about the ruling
which excluded certain witnesses from testifying at trial.
The motion was denied on September 24, 2008, and
Kiswani filed his notice of appeal on September 29, 2008.
On December 22, 2008, this Court entered an Order
limiting this appeal to a review of the magistrate judge’s
order dated September 24, 2008. In this Order, we ex-
plained that Fed. R. App. P. 4(a) requires that a notice
of appeal in a civil case be filed in the district court
within thirty days of the entry of the judgment or the
order being appealed. In this case, judgment was entered
on June 16, 2008, and the order denying Kiswani’s motions
to alter judgment and/or for new trial was entered on
August 20, 2008, which started the time to appeal. Notice
of appeal was not filed until September 29, 2008; ten days
late. We also note that the motion filed on September 12,
2008, was not within ten business days of entry of judg-
ment and therefore did not toll the time to appeal.
So Kiswani’s appeal is timely only as to the order of
September 24, 2008, and we only consider whether the
magistrate judge erred in denying the motion to recon-
sider.
II. DISCUSSION
A motion designated as one for reconsideration should
be considered as a motion to alter or amend the judgment
4 No. 08-3468
if it is timely filed. Kunik v. Racine County, Wis., 106 F.3d
168, 173 (7th Cir. 1997). A motion to alter or amend a
judgment under Fed. R. Civ. P. 59(e) must be filed no later
than ten days after the entry of the judgment. Here,
the magistrate judge entered judgment on June 16,
2008. Kiswani’s motion to reconsider was not filed until
September 12, 2008; too late for Rule 59. So we turn to
Rule 60(b).
In Telano v. Nw. Med. Faculty Found. Inc., we held that
when “a motion to alter or amend a judgment under
Rule 59(e) . . . is filed more than 10 days after entry of
judgment[, it] automatically becomes a Rule 60(b) mo-
tion.” 273 F.3d 757, 762 (7th Cir. 2001).
Rule 60(b) provides that:
the court may relieve a party . . . from a final judgment,
order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence which by
due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrin-
sic), misrepresentation, or other misconduct of an
adverse party; (4) the judgment is void; (5) the judg-
ment has been satisfied, released, or discharged, or
a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying relief
from the operation of the judgment.
No. 08-3468 5
A motion under Rule 60(b) is a collateral attack on the
judgment and the grounds for setting aside a judgment
under this rule must be something that could not have
been used to obtain a reversal by means of a direct
appeal. Bell v. Eastman Kodak Co., 214 F.3d 798, 801 (7th
Cir. 2000).
Here, Kiswani’s motion to reconsider the denial of his
post-judgment motions asserted the same argument as
his June 28, 2008 motions, i.e., his trial efforts were preju-
diced when the magistrate judge excluded certain wit-
nesses from testifying at trial. Kiswani’s motion is not
a collateral attack because it does not raise a new ground
for setting aside the judgment, and he cannot proceed
under Rule 60(b).
III. CONCLUSION
Kiswani’s motion to reconsider is untimely under
Rule 59(e) and improper under Rule 60(b); we A FFIRM
the district court.
10-16-09