                               In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 05-3431
NOEL BORRERO,
                                                   Plaintiff-Appellant,
                                   v.

CITY OF CHICAGO, et al.,
                                                Defendants-Appellees.
                           ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
            No. 05 C 1326—Samuel Der-Yeghiayan, Judge.
                           ____________
       SUBMITTED MAY 26, 2006—DECIDED JULY 14, 2006
                           ____________


  Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. Appealability is the first and last
issue that we resolve in this case. On May 9 of last year,
the district judge dismissed the plaintiff’s suit for failure to
prosecute it, but the judgment order—the separate docu-
ment required by Rule 58 of the Federal Rules of Civil
Procedure—of dismissal was not docketed until June 10.
Meanwhile, on June 1, the plaintiff had filed a motion to
vacate the dismissal, and the judge had denied that mo-
tion on June 8 and the denial was docketed on June 10. On
June 9 the plaintiff had filed a motion to reconsider the June
8 denial and the judge denied that motion on June 16 and
2                                                  No. 05-3431

the denial was docketed that day. On June 22 the plaintiff
filed a second motion to reconsider the denial of his first
motion, the motion to vacate the dismissal of his suit. The
judge denied this motion on July 14 and the denial was
docketed the following day. None of the three motions
indicated what federal rule of procedure authorized it. On
August 10 the plaintiff (represented throughout by counsel,
be it noted) filed a notice of appeal from the orders denying
all three of his filings—the motion to vacate the dismissal of
the case and the two motions to reconsider the denial of that
initial motion.
   A motion to alter or amend a judgment is deemed filed
under Rule 59(e) of the civil rules, which tolls the time for
filing an appeal from the judgment, if the motion is filed
within 10 days after entry of the judgment, which means
after the Rule 58 judgment order has been docketed. Fed. R.
Civ. P. 58(b)(2); Laborers’ Pension Fund v. A & C Environmen-
tal, Inc., 301 F.3d 768, 775 n. 5 (7th Cir. 2002); Connecticut ex
rel. Blumenthal v. Crotty, 346 F.3d 84, 92 (2d Cir. 2003). It is
deemed filed under Rule 59(e) even if, as in this case, the
motion is not labeled a Rule 59(e) motion and, again as in
this case, does not say “alter or amend” (the language of
Rule 59(e)), but instead uses a synonym, such as “vacate” or
“reconsider.” Curry v. United States, 307 F.3d 664, 666 (7th
Cir. 2002); Charles v. Daly, 799 F.3d 343, 347 (7th Cir. 1986);
Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130, 136-37
(2d Cir. 2000); Harcon Barge Co. v. D & G Boat Rentals, Inc.,
784 F.2d 665, 668 (5th Cir. 1986) (en banc).
  But we and most other courts do not cavil if, as also in this
case, the motion is filed before the Rule 58 judgment order
has been docketed or even before there is a Rule 58 judg-
ment, provided that a final judgment has been rendered.
E.g., Dunn v. Truck World, Inc., 929 F.2d 311 (7th Cir. 1991);
Havird Oil Co. v. Marathon Oil Co., 149 F.3d 283, 288 (4th Cir.
No. 05-3431                                                  3

1998); Kersey v. Dennison Mfg. Co., 3 F.3d 482, 485 n. 7 (1st
Cir. 1993); cf. Fed. R. App. P. 4(a)(2); FirstTier Mortgage Co.
v. Investors Mortgage Ins. Co., 498 U.S. 269 (1991); Chicago
United Industries, Ltd. v. City of Chicago, 445 F.3d 940, 943
(7th Cir. 2006). Rule 58 prescribes a formality, a useful one
but not one that is prerequisite to appealing. The losing
party can appeal a judgment (in this case, the dismissal of
the suit on May 9) before the entry of the Rule 58 judgment
order if though not embodied in the separate document that
Rule 58 requires the judgment really is final within the
meaning of 28 U.S.C. § 1291. Bankers Trust Co. v. Mallis, 435
U.S. 381 (1978) (per curiam); Otis v. City of Chicago, 29 F.3d
1159, 1165 (7th Cir. 1994); Lazy Oil Co. v. Witco Corp., 166
F.3d 581, 585-87 (3d Cir. 1999). And that just means: if the
district judge is finished with the case. Chase Manhattan
Mortgage Corp. v. Moore, 446 F.3d 725, 726 (7th Cir. 2006); see
Moreau v. Harris County, 158 F.3d 241, 244 (5th Cir. 1998). By
the same token, the party should be allowed to file a motion
to alter or amend the judgment within the time permitted
for such motions even if the Rule 58 judgment order has not
yet been made or docketed.
  But the first such motion that the plaintiff filed was
denied on June 8 and docketed on June 10, which was when
his 30-day period for appealing began to run. Fed. R. Civ. P.
58(a)(1)(D), (b)(1). He did not file his notice of appeal until
August 10, which was too late. His second motion was also
denied more than a month (June 16) before he filed his
notice of appeal. However, his third motion, filed on June
22, was filed within 10 business days after the Rule 58
judgment order (and so it was a Rule 59(e) motion) and was
denied fewer than 30 days before he filed his notice of
appeal. The question concerning the appealability of the
order denying that motion is not whether the appeal was
untimely, which it was not, but whether the denial was an
appealable kind of order.
4                                                 No. 05-3431

   Abbs v. Sullivan, 963 F.2d 918, 925 (7th Cir. 1992), holds
that the denial of a timely Rule 59(e) motion is not
appealable separately from the judgment that it seeks to
alter or amend. See also Cardoza v. CFTC, 768 F.2d 1542,
1546-47 (7th Cir. 1985); 6A Moore’s Federal Practice ¶ 59.15[1],
at p. 59-288 and n. 4 (3d ed. 2006); cf. Foman v. Davis, 371
U.S. 178, 181 (1962); contra, Fiore v. Washington County
Community Mental Health Center, 960 F.2d 229, 232-33 and n.
8 (1st Cir. 1992) (en banc). The two orders—the judgment
and the denial of the motion to change it—merge. They
merge because the purpose of the motion, so far as suspend-
ing the time within which to appeal is concerned, is to delay
the appeal from the judgment until the district court has
ruled on the motion, at which point the judgment is ripe for
review. Since that is the only purpose of the motion should
it be denied, the court of appeals will construe an appeal
from the denial (should the appellant’s notice of appeal
mistakenly cite only the denial) as being an appeal from the
judgment. Foman v. Davis, supra, 371 U.S. at 181; Tango
Music, LLC v. DeadQuick Music, Inc., 348 F.3d 244, 247 (7th
Cir. 2003). The notice of appeal in this case mentions only
the orders denying the motions to vacate or reconsider the
dismissal of his suit; that dismissal was the underlying
judgment.
  But by August 10, when the plaintiff filed his notice of
appeal, the time for appealing from that judgment had
lapsed. For only the first Rule 59(e) motion tolls the time to
appeal from the judgment, unless the judgment is subse-
quently altered, Charles v. Daly, supra, 799 F.2d at 348, which
did not happen here. E.g., Berwick Grain Co. v. Illinois Dep’t
of Agriculture, 189 F.3d 556, 558 (7th Cir. 1999); Charles v.
Daly, supra, 799 F.2d at 347; In re Stangel, 68 F.3d 857, 859
(5th Cir. 1995) (per curiam); Moody v. Pepsi-Cola Metropolitan
Bottling Co., 915 F.2d 201, 206 (6th Cir. 1990). Otherwise a
No. 05-3431                                                  5

litigant could extend the time to appeal indefinitely simply
by filing successive Rule 59(e) motions. Venable v. Haislip,
721 F.2d 297, 2999 (10th Cir. 1983) (per curiam). If the denial
of the plaintiff’s June 22 motion were appealable, he would
have succeeded in circumventing the rule that only the first
Rule 59(e) motion tolls the time for appealing from the
judgment, because by asking us to reverse the denial of the
June 22 motion he would, by reason of the merger doctrine
we mentioned, be attacking the underlying judgment.
  Now it is true that just as the entry of the Rule 58 judg-
ment order on June 10 started the clock running that limits
the time for appealing, Fed. R. App. P. 4(a)(1), (7), so it
started the clock running that limits the time for filing
a Rule 59(e) motion. For that motion must be filed within 10
days of the entry of judgment, which occurs when the Rule
58 judgment order is docketed (or, so far as the time to
appeal is concerned, when 150 days have elapsed since the
final judgment was issued, Fed. R. App. P. 4(a)(7) (A)(ii)).
Otherwise all the plaintiff’s postjudgment motions (con-
strued as Rule 59(e) motions) would have been untimely, for
they were filed more than 10 days after the district court
rendered judgment on May 9.
   But it does not follow that because the motions filed on
June 1 and June 9 were premature, having been filed before
the Rule 58 judgment order was docketed, they should be
ignored and the motion filed on June 22 considered the first
Rule 59(e) motion rather than a repetition of the previous
motions. Nothing in the rules compels such a result, and it
would not make good sense. The appellate rules provide a
safe harbor for litigants uncertain whether a judgment that
is not entered on a separate document as required by
Rule 58 really is a final, appealable judgment. The plain-
tiff in our case took advantage of the safe harbor by filing
6                                                 No. 05-3431

his first Rule 59(e) motion more than 10 days after the
judgment was rendered (May 9) but fewer than 10 days
after the Rule 58 judgment order was docketed (June 10). He
was protected because, as we noted earlier, a prema-
ture Rule 59(e) motion is timely. There is no reason to
allow him to file a second identical motion and get more
time to appeal just because his first motion was premature.
He should not be rewarded for prematurity.
  There is a final wrinkle to smooth out. Although most
cases continue to state that motions attacking a judgment
that are filed within 10 days after docketing are to be
deemed Rule 59(e) motions regardless of label—and we
have used that usage in this opinion—Rule 4(a)(4)(A)(vi) of
the Federal Rules of Appellate Procedure was added in 1993
to provide that a Rule 60(b) motion filed within 10 days also
tolls the time for appealing. See Kunik v. Racine County, 106
F.3d 168, 173 (7th Cir. 1997); Jennings v. Rivers, 394 F.3d 850,
855 and n. 4 (10th Cir. 2005). Under the old “labels don’t
matter” approach, a Rule 60(b) motion filed within 10 days
would be evaluated under the standard applicable to Rule
59(e) motions. Under the amended appellate rule, a motion
labeled a Rule 60(b) motion filed within 10 days after the
judgment tolls the time for appeal, just like a Rule 59(e)
motion, though now, as explained in the Jennings case, the
motion is evaluated by the district court under the standard
set forth in Rule 60(b). But a litigant should no more be able
to extend the time for appealing from the final judgment
indefinitely by filing successive Rule 60(b) motions, or for
that matter by filing an alternating sequence of Rule 59(e)
and Rule 60(b) motions, than to do so by filing just a
succession of Rule 59(e) motions. So it would not help the
plaintiff for us to recharacterize any of his motions as Rule
60(b) motions, unless the motions stated a basis for relief
under Rule 60(b), such as fraud on the court. They do not.
No. 05-3431                                                 7

  Since none of the three orders that the plaintiff is asking
us to review is within our jurisdiction, the appeal is
                                                  DISMISSED.
A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—7-14-06
