OPINION
This is an appeal of a dispute concerning a purchase agreement for the sale of land brought pursuant to diversity jurisdiction. The district court granted summary judgment and entered a final judgment for the Defendant-Appellee, MBL Life Assurance Corp., on April 11, 1997, denied FHC Equities’ (“Plaintiffs”) Rule 59(e) motion on June 10, 1997, and denied Plaintiffs Rule 60(b) motion on October 1, 1997. On December 8, 1998, this court dismissed Plaintiffs direct appeal and its appeal from the denial of its Rule 59(e) motion for lack of jurisdiction [Case No. 97-1736]. We will explain the reasoning for that decision herein. In addition, we AFFIRM the district court’s denial of Plaintiffs Rule 60(b) motion [Case No. 97-2115],
I. PROCEDURAL HISTORY
On April 11, 1997, the district court granted summary judgment and entered a final judgment for the Defendant. On April 28, 1997, the Plaintiff filed a Motion to Alter or Amend the Judgment pursuant to Fed.R.Civ.P. 59(e). The district court considered the motion and denied it on the merits by order entered June 10, 1997, ruling that the Plaintiff had presented no new issues that would entitle it to relief under Rule 59(e).
Plaintiff filed a notice of appeal from the April 11th judgment on July 1, 1997 [Case No. 97-1736], within 30 days of the court’s denial of the Rule 59(e) motion, but not within 30 days of the entry of the April 11 judgment. The Defendant filed a Motion to Dismiss the Appeal for lack of subject matter jurisdiction, arguing that because the Rule 59(e) motion was untimely, it did not toll the time for appeal and thus, the appeal was untimely.
After the first appeal was filed, the Plaintiff filed a motion for relief under Fed.R.Civ.P. 60(b)(1) in the district court, arguing that Plaintiffs attorney mistakenly interpreted the federal rules, believing that Rule 6(e) extended by three days the time for filing a Rule 59(e) motion. The district court denied the motion and the Plaintiff filed a timely appeal from that decision [Case No. 97-2115].
*681 II. CASE NO. 97-1736— Rule 59(e) Motion
Before oral argument, the panel granted the Defendant’s motion to dismiss the first appeal, No. 97-1736, as untimely, noting that a single opinion resolving both appeals would follow. We now explain why the Plaintiffs appeal in Case No. 97-1736 was untimely and thus, divested this Court of subject matter jurisdiction.
A timely filing of a notice of appeal is mandatory and jurisdictional.
Browder v. Director, Dep’t of Corrections of Ill.,
A
timely
motion under Rule 59 will toll the time for appeal until the court rules on the motion.
1
Fed. R.App. P. 4(a)(4). However, if a Rule 59 motion is not timely filed, it does not toll the time for appeal.
Browder,
Rule 59(e) provides that a motion to alter or amend the judgment “shall be filed no later than 10 days after entry of the judgment.” Fed.R.Civ.P. 59(e). In an actual count of days, Plaintiff filed the motion 17 days after the entry of judgment (April 11 to April 28). However, the Rules provide that when the time period for filing a motion is less than 11 days, we must exclude intermediate holidays, Saturdays, and Sundays. Fed.R.Civ.P. 6(a). Here, the judgment was filed on Friday, April 11; when we exclude the holidays, Saturdays, and Sundays, we arrive at Friday, April 25, as the last day on which the Rule 59(e) motion could be filed. Plaintiff filed its motion on Monday, April 28, 1997, one day late.
Plaintiff argues that the motion was timely filed because Fed.R.Civ.P. 6(e) allows an extra three days for filing in some situations. That rule provides:
(e) Additional Time After Service by Mail.
Whenever a party has the right or is required to do some act or take some proceedings within a prescribed time period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.
Fed.R.Civ.P. 6(e).
Plaintiff attempts to analogize several cases to the case at bar, but neglects to mention that every court that has considered
this precise issue
(including this Court in unpublished opinions
2
), has re
*682
jected the Plaintiffs argument.
See, e.g., Halicki v. Louisiana Casino Cruises, Inc.,
We think the D.C. Circuit has correctly explained why the extension in Rule 6(e) does not apply to Rule 59(e) motions:
Mere quotation of Rule 6(e) shows why it is inapplicable to Rule 59(e) motions. The period for filing a Rule 59(e) motion does not — in the words of Rule 6(e)— begin with “service of a notice.” True, the clerk of the district court must “immediately” serve by mail a notice of the entry of a judgment (Fed.R.Civ.P. 77(d)). But the critical point for measuring the timeliness of a Rule 59(e) motion is not the date of service, nor is it the date of the court’s order. The 10 days allowed by Rule 59(e) begin with the clerk’s ministerial act of entering the court’s judgment is a “book” — today, often in the form of an automated system- — “known as the ‘civil docket’ ” (Fed. R.Civ.P. 79(a)).... To be sure, 10 days for preparing and serving a motion to alter or amend a judgment, even 10 working days, is not much time. Yet there is no doubt that strict compliance is required. District courts do not have even the customary discretion given by Fed.R.Civ.P. 6(b) to enlarge the Rule 59(e) period.... The period is to be kept short presumably because a timely Rule 59(e) motion deprives the judgment of finality.
Derrington-Bey,
Finally, we note that the fact that the district court ruled on the merits of the
*683
motion does not make the motion or the appeal timely.
Denley v. Shearson/American Express, Inc.,
III. CASE NO. 97-2115— Rule 60(b) Motion
The district court had jurisdiction to consider Plaintiffs Rule 60(b) motion, even though a district court generally loses jurisdiction once a party files a notice of appeal.
Lewis v. Alexander,
In this case, Plaintiff sought relief from judgment based upon Rule 60(b)(1) which 'allows a court to relieve a party from a final judgment based on mistake, inadvertence, surprise, or excusable neglect. Fed.R.Civ.P. 60(b)(1). “It is well settled that the [ruling on] a motion to set aside judgment under Rule 60(b)(1) is a matter addressed to the sound discretion of the trial court, and that determination will not be reversed except for abuse of discretion.”
Lewis,
The only basis the Plaintiff cites for relief under Rule 60(b) is that the original notice of appeal was untimely filed because of a mistaken interpretation of the Federal Rules and substantial efforts were made to comply with those Rules. In support of its argument, Plaintiff merely cites Rule 60(b) and our decision in
Lewis v. Alexander,
In Lewis, this Court addressed the issue of “whether the district court may grant relief from judgment under Fed.R.Civ.P. 60(b) for the sole purpose of re-entering the same judgment at a later date, thereby making an untimely appeal timely.” Id. at 394. The panel first recognized that a Rule 60(b) motion is “not normally available to relax the appeals period and extend that period outside the time prescribed by Fed. R.App. P. 4(a)(5).” Id. at 396. However, the court noted that certain circumstances warrant relief. Id. The Court must first determine whether the late appeal resulted from one of the enumerated reasons listed in Rule 60(b). Id. Then, the court must find “a lack of prejudice to the respondent, prompt filing of the motion after actual notice, and due diligence, or sufficient reason for the lack thereof, by counsel in attempting to comply with the time constraints of Fed. R.App. P. 4(a).” Id.
In
Lewis,
the appeal was late because the attorney mailed the notice of appeal three days before the appeal period expired, but it was not docketed until four days after the time for taking an appeal expired.
Lewis,
Other courts, however, have roundly disagreed with that decision and argue that the panel did not address Fed. R.App. P. 4(a)(6),
4
which governs the district court’s discretion to extend the time for appeals when parties fail to find out about final, judgments and allows extensions of time for appeals.
See Zimmer St. Louis, Inc. v. Zimmer Co.,
Plaintiff claims that the circumstances here are similar to the situation in Lewis, because the late appeal in this case resulted from his attorney’s misinterpretation of Rule 6(e)’s application to motions filed under Rule 59(e). Plaintiff explains that his attorney had recently researched the applicability of Rule 6(e) to Rule 72(a), the rule governing the filing of objections to a magistrate’s order. Both Rule 72(a) and Rule 59(e) involved a 10-day time limit, Plaintiff argues, and therefore, his attorney reasonably believed that Rule 6(e) would apply to both. In addition, Plaintiff argued to the district court that because this was an issue of first impression in this Circuit, it was reasonable for Plaintiffs attorney to conclude that Rule 6(e) applies to rule 59(e). Plaintiff concludes that his counsel’s error may properly be redressed through application of Rule 60(b).
Plaintiff does not point us to a single case, however, which holds that attorney misinterpretation of the law can constitute “mistake” under Rule 60(b)(1). The best Plaintiff can do is to lament that his attorneys had three cases they viewed as analogous to the issue of Rule 6(e)’s application to Rule 59(e), and felt since there was no Sixth Circuit opinion on point, the issue of whether Rule 6(e) applied to Rule 59(e) was at least a gray area. However, none of the Plaintiffs cases dealt with Rule 59 and none were Sixth Circuit cases. If the Plaintiffs attorneys could find these “analogous” cases from other jurisdictions, it would seem reasonable that they could find the numerous cases directly on point from other Circuits which hold that Rule 6(e) does not apply to motions under Rule 59(e).
In addition, Plaintiffs counsel’s reliance upon his earlier research with regard to Fed.R.Civ.P. 72(a) is not reasonable because the language employed in that rule is significantly different from Rule 59(e). Rule 72(a) states: “[wjithin 10 days after being served with a copy of the magistrate judge’s order, a party may serve and file objections to the order.” Fed.R.Civ.P. 72(a). Obviously, this situation falls within Rule 6(a)’s ambit of when a rule requires actions within a particular time period after the service of a notice on a party, whereas Rule 59(e) runs from entry of judgment.
Although the Plaintiff cites many cases for the proposition that Rule 60(b) should be read broadly, none of the cases is directly on point; none of those cases addresses an attorney’s mistaken interpretation of the law.
See, e.g., Wallace v.
*685
McManus,
On the other hand, Plaintiff seems to have missed the cases in which the alleged “mistake” was the attorney’s misinterpretation of the law or a strategy decision, and the courts have found that Rule 60(b)(1) does not afford relief from judgment. For example, in
Edward H. Bohlin Co. v. Banning Co.,
Denial of a Rule 60(b) motion to set aside a dismissal under clause (1) is not an abuse of discretion when the proffered justification for relief is the “inadvertent mistake” of counsel. Gross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for 60(b)(1) relief.... In fact, a court would abuse its discretion if it were to reopen a case under Rule 60(b)(1) when the reason asserted as justifying relief is one attributable solely to counsel’s carelessness or misapprehension of the law or the applicable rules of court.
Id.
at 356-57 (footnotes omitted);
see also Engleson v. Burlington Northern R.R. Co.,
There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, yet he cannot now avoid the consequences of the acts or omissions of this freely-selected agent. Any other notion would be wholly inconsistent with our system of representative litigation. ...
Id.
at 608-09,
consistently declined to relieve a client under subsection (1) of the “burdens of a *686 final judgment entered against him due to the mistake or omission of his attorney by reason of the latter’s ignorance of the law or other rules of the court....”
More particularly for our purposes, an attorney’s failure to evaluate carefully the legal consequences of a chosen course of action provides no basis for relief from a judgment.
Id.
at 62;
Smith v. Stone,
Another case in which the procedural posture is strikingly similar to the case at bar comes from the district court in Michigan, albeit the Western Division, rather than the Eastern, from whence the appeal before us here has come. That case,
Peake v. First Nat’l Bank & Trust Co. of Marquette,
[T]he conclusion reached by the associate [that an untimely Rule 59(e) motion would toll the time for appeal] was incorrect. The associate failed to spend enough time to carefully research the problem. [The plaintiffs attorney’s] reliance upon his associate falls considerably below the requirement that only “unique or extraordinary circumstances” are required to constitute “excusable neglect.”
[W]e have in this case a conscious decision made by an attorney based upon ignorance of the law. This is not a unique or unusual set of circumstances. No errors by outside parties, such as court clerks, are involved. We have nothing more than a classic example of attorney error. My reading of the cases convinces me that the federal courts are practically unanimous in holding that, under these circumstances, attorney error is not “excusable neglect.”
Id. at 546, 546-47.
As was the case in Peake, Plaintiffs attorney admitted that he knew that the question of Rule 6(e)’s applicability to Rule 59(e) was at best a gray area. Thus, although the Sixth Circuit had yet to rule on the issue in a published opinion, he must have been aware that every other circuit had ruled Rule 6(e) inapplicable to Rule 59(e) and hornbooks had also accepted this conclusion as sound and unquestioned. The error here is no different from the attorney’s error in Peake.
The Fifth Circuit has recently addressed almost the precise issue before us. In
Halicki v. Louisiana Casino Cruises, Inc.,
[w]here, as here, the rule at issue is unambiguous, a district court’s determination that the neglect was inexcusable is virtually unassailable. Were it otherwise, “almost every appellant’s lawyer would plead his own inability to understand the law when he fails to comply with a deadline.”
Id.
at 470 (quoting
Advanced Estimating Sys., Inc. v. Riney,
If an attorney’s misinterpretation of rules constitutes “mistake” justifying the setting aside of a judgment under Rule 60(b) to permit a second bite at the appeal apple, the requirements and limitations of Fed. R.App. P. 4 are meaningless. The district court did not abuse its discretion in refusing to rule that the attorney’s misinterpretation of the rules was a “mistake” within Rule 60(b).
This Circuit has previously held that: “Rule 60 was not intended to relieve counsel of the consequences of decisions deliberately made, although subsequent events reveal that such decisions were unwise.”
In re Salem Mortgage Co.,
IV. CONCLUSION
For the foregoing reasons, the Plaintiffs appeal in case number 97-1736 is DISMISSED for lack of subject matter jurisdiction and the district court’s decision in Plaintiffs appeal number 97-2115 is AFFIRMED.
Notes
. Specifically, Fed. R.App. P. 4(a)(4) provides:
If any party files a timely motion of a type specified immediately below, the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Federal Rules of Civil Procedure: ... (C) to alter or amend the judgment under Rule 59....
Fed. R.App P. 4(a)(4) (emphasis added).
.
McKay v. Dutton,
No. 86-6282,
. Plaintiff relies on several cases that have applied Rule 6(e)’s extension of time to interlocutory orders of district court judges or magistrates' reports or orders. None of these cases is apposite here.
See Bell & Howell Acceptance Corp. v. Wolverine Mailing, Packaging, Warehouse, Inc.,
. Fed. R.App. P. 4(a)(6) states:
The district court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.
Fed. R.App. P. 4(a)(6).