AMERICAN IRONWORKS & ERECTORS INC., a Washington corporation, by the United States for the use and benefit of; HARRY JOHNSON PLUMBING & EXCAVATING CO., INC, a Washington corporation; E&E ACOUSTIC II INC/COMMERCIAL CONSTRUCTORS INC, a joint venture of an Oregon corporation and an Idaho corporation, Plaintiffs-Appellees, v. NORTH AMERICAN CONSTRUCTION CORPORATION, a Texas corporation doing business in Washington, Defendant, and FEDERAL INSURANCE COMPANY, a compensated surety from New Jersey doing business in Washington; NORTH AMERICAN MECHANICAL SERVICES CORP, a Texas corporation and doing business in Washington dba North American Construction Corporation; Defendants-Appellants, MIKKELBORG, BROZ, WELLS & FRYER, PLLC, (“Mikkelborg Firm“), Defendant-Appellee.
No. 99-35379
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted January 9, 2001. Filed April 26, 2001
248 F.3d 892
Mitchell A. Broz, Mikkelborg, Broz, Wells & Fryer, PLLC, Seattle, Washington, for appellee Mikkelborg, Broz, Wells & Fryer.
Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, District Judge, Presiding. D.C. No. CV-95-00099-FVS.
Before: M. Margaret McKeown, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.
OPINION
McKEOWN, Circuit Judge:
This case requires us to decide whether an entry of judgment triggers the notice of appeal period for a prior interlocutory order granting, but not disbursing, attorney‘s fees. We conclude that it does.
BACKGROUND
This litigation began in 1995 as a claim brought by subcontractors for payment for work completed on federal public works projects under the Miller Act,
Beginning in 1997, the Mikkelborg firm corresponded directly with North American and its national counsel concerning payment of fees. Although some payments were made, the demand letters were, by and large, met with silence. In the spring of 1998, it became evident to all parties that North American faced cash flow problems. The Mikkelborg firm expressed continued concern about the unpaid fees and, in a series of unanswered letters, the firm embarked on a campaign to collect its fees. About the same time, a conflict arose over North American and Federal being represented by a single lead counsel. The court granted separate counsel permission to appear pro hac vice on behalf of Federal. Late that summer, North American offered to pay $ 10,000 immediately and $ 10,000 after the case settled, with Federal picking up all fees incurred after May 1, 1998. The Mikkelborg firm declined the offer, apparently because it believed that North American was on the brink of insolvency.
These events prompted the Mikkelborg firm to file a motion to withdraw, asking the district court to condition the substitution of local counsel on the payment of outstanding fees. The firm argued that it had been constructively discharged when neither North American nor Federal responded to fee inquiries and then took steps to substitute counsel. North American and Federal opposed the withdrawal and fee request on the grounds that the firm was withdrawing unilaterally and without good cause.
On October 19, 1998, the district court issued an order allowing the Mikkelborg firm to withdraw and permitting substitution of local counsel on the condition that Federal and North American pay outstanding attorney‘s fees in the amount of $ 21,413.98. The court noted, however, that it did not want “to frustrate settlement by delaying substitution of new local counsel.” Thus, substitution was allowed but it was conditioned on security for payment of fees. In order to preserve rights on appeal, the court offered three options for payment of fees: (1) payment into the registry of the court; (2) payment to a third party agreed upon by the Mikkelborg firm; or (3) delivery of a bond to the District Court Executive. Federal chose to pay the money into the court registry.
Soon after deposit of the fees, the parties successfully mediated all claims. On December 1, 1998, the court entered an Order re Mediator‘s Award that outlined the mediation history and settlement terms. At the same time, the court entered a separate Judgment in a Civil Case against North American and Federal in the amount of $ 250,000. They did not appeal the judgment.
On March 8, 1999, the Mikkelborg firm moved the court to disburse the moneys from the court‘s registry. In response, North American and Federal filed an opposition, a cross-motion to withdraw and reverse the October 1998 order, and a notice of appeal. On May 28, 1999, the district court issued an order disbursing the fees to the Mikkelborg firm and denied the cross motion as untimely under
DISCUSSION
Our first order of business is to sort out the legal status of the district court‘s various orders and the two notices of appeal. Although the Mikkelborg firm argues that the October 1998 order awarding fees was a final appealable order, we do not agree. That order was an interlocutory order that was merged into the final December 1998 judgment. As such, the appeal period began to run on December 1, 1998. Federal filed its first notice of appeal on April 6, 1999 -- five months after the district court‘s order on fees and four months after the district court entered judgment on the underlying claims. We conclude that Federal‘s first notice of appeal was untimely.
Federal‘s argument that the only final order as to fees was the May 28, 1999 order and that no final judgment was entered is not well taken. The May 28, 1999 order disbursing the funds was not a final order for the purposes of the timeliness of appeal, but simply a housekeeping order to execute the court‘s prior order on fees. The portion of the order denying the challenge to the disbursal order is properly characterized as a denial of an untimely
I. THE JUDGMENT AND NOTICES OF APPEAL
Because we “ordinarily have jurisdiction over appeals from ‘final decisions of the district courts,‘” Cunningham v. Hamilton County, 527 U.S. 198, 200, 119 S. Ct. 1915, 144 L. Ed. 2d 184 (1999) (quoting
This conclusion is reinforced by the Supreme Court‘s recent decision in Cunningham, where the Court addressed the appealability of an interlocutory order imposing sanctions on an attorney under
The next issue is whether the December 1, 1998 judgment merged all prior interlocutory orders for the purposes of filing a notice of appeal or whether the October 19, 1998 order required a separate entry of judgment. An interlocutory order becomes appealable when final judgment is entered. The Supreme Court has explained the importance of the final judgment rule:
It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of “avoiding the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.”
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S. Ct. 669, 66 L. Ed. 2d 571 (1981) (alteration in original) (quoting Cobbledick v. United States, 309 U.S. 323, 325, 60 S. Ct. 540, 84 L. Ed. 783 (1940)); accord Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994) (holding that “a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated“).
A necessary corollary to the final judgment rule is that a party may appeal interlocutory orders after entry of final judgment because those orders merge into that final judgment. See Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1114 (9th Cir. 2000) (noting that prior interlocutory orders are “merged into final judgment“); Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir. 1981) (noting that “an appeal from the final judgment draws in question all earlier non-final orders and all rulings which produced the judgment“).
In the present case, the December 1, 1998 judgment was the final judgment in the case; it is therefore effective as to all interlocutory orders. The judgment, which was separate from the Order re Mediator‘s Award and was separately entered on the court‘s civil docket, meets the separate document requirement of
After entry of judgment, the only remaining action item was disbursal of funds from the court registry. A mere ministerial order, such as an order executing a judgment or, in this case, an order to disburse funds from the court registry, is not a final appealable order.4 See Powell v. Georgia-Pacific Corp., 90 F.3d 283, 284 (8th Cir. 1996) (reasoning that “the disbursement order . . . is merely a ‘housekeeping’ order” and “because the disbursement order is not a final one,” the court lacks jurisdiction to hear an appeal from it under
North American and Federal filed the second or amended notice of appeal on June 7, 1999, shortly after the district court‘s May 28, 1999 order disbursing funds and denying the motion for reconsideration. The May 28 order specifically noted that there were no further decisions to be made on the merits of the fee issue; as to fees, the first paragraph of the order simply directed disbursal of the funds from the court registry -- a non-final, non-appealable order. The May 28 order also fully resolved the motion seeking reconsideration of the October 19, 1998 order. Therefore, the June 7, 1999 notice of appeal was timely as to that portion of the order.
II. THE RULE 60(B) MOTION
The filings by North American and Federal on March 18, 1999, asked the district court to withdraw its October 19, 1998 order and disburse the money in the court registry to Federal. The district court correctly construed these filings (one opposition and one motion) as a request for reconsideration or relief from judgment.
As the district court noted, a “motion for reconsideration” is treated as a motion to alter or amend judgment under
The moving party under
Federal and North American failed to advance any argument before the district court that might conceivably fall within any of the enumerated factors under
CONCLUSION
This appeal is dismissed as untimely insofar as it challenges the October 19, 1998 order and the December 1, 1998 judgment. Because we are without jurisdiction, we dismiss the appeal of the portion of the May 28, 1999 order disbursing fees. The portion of the May 28, 1999 order denying the
AFFIRMED in part and DISMISSED in part.