*1 Dunn, 26-105, governing petitions for Donald and Donna the statute Plaintiffs- nobis, Counter-Defendants-Appellees, of error coram violates writ Amendments in Eighth and Fourteenth v. claim of factual inno that a constitutional Nancy Savage, on the clarification substan cence based Michael and Defen one-year tive can be barred dants-Counter-Plaintiffs-Ap laW (No. 06-1326). of limitations. The Rooker-Feld pellants statute apply doctrine does not to Carter’s man 06-1325, Nos. 06-1326. challenge constitutionality facial to the statutes, Tennessee collateral review these Appeals, United States Court of 29-21-107, 40-26-105, §§ Tenn.Code Ann. Sixth Circuit. Whitbeck, and 40-30-117. See Howard v. Cir.2004). Submitted: Jan. 2008. 633, 640 summarily district court thus erred dis April Decided and Filed: missing challenge Carter’s facial to the Tennessee statutes.
The district court however correct as-applied challenge
ly dismissed Carter’s constitutionality
to the of the Tennessee
collateral review as barred statutes doctrine. Carter’s al
Rooker-Feldman
leged injury the Tennessee courts —that
deprived judicial him of review and redress injury
for his constitutional claims—is an
from the determinations state-court cog
that his constitutional claims were not
nizable or were otherwise barred. See
Raymond Moyer, 551-52
(6th Cir.2007). Accordingly, the district jurisdiction
court lacked over Carter’s as- challenge constitutional under the
applied
Rooker-Feldman doctrine.
Thus, opinion the district court’s is af- part part,
firmed and vacated and this proceedings.
case is remanded for further SAFFADY, Gregory
In re Court- Receiver, Appellant
appointed
(No. 06-1325),
ceivership. Counter-plaintiffs Michael and Nancy Savage and court-appointed re- ceiver both of these decisions. Al- though an vacating summary judg- *3 ment is a final appealable order under 1291, § 28 U.S.C. the Savages contend this court should hear their appeal pursuant to the common law exception to the final order rule that allows for appel- jurisdiction late when the district court has acted without authority. The district court, however, authority had to vacate the summary judgment on its own motion be- cause, out, as it turned the summary judg- ment order had never been entered. Therefore, jurisdiction this court has no Tindall, ON E. BRIEF: Michael Tindall review the district court’s non-final deci- Clemens, Company, Mount Michigan, & sion to vacate the summary judgment. Appellants. DuMouchel, David F. jurisdiction This court also lacks Donnini, review George Michelson, B. Laurie J. the interlocutory order vacating the Detroit, receiv- Long, Butzel Michigan, Michael ership. provision The of 28 U.S.C. Smith, Long, Butzel Washington, Francis allowing appeals from interlocutory or- D.C., for Appellee. that modify injunction ders does not MOORE, CLAY, ROGERS, Before: and apply to that order. We therefore dismiss Judges. Circuit appellate jurisdic- for lack of tion. ROGERS, J., opinion delivered the court, MOORE, J., joined.
the in which I. CLAY, 805-09), (pp. J. delivered a separate opinion dissenting part and underlying The lawsuit stems from the concurring the Savages’ construction of a retaining wall along the bank of the creek that separates OPINION their land from land owned the Dunns.
ROGERS, Judge. Circuit initially The case was filed the Dunns In this long-standing property-use dis- County (Michigan) Sanilac Circuit Court pute, 14, 2004, the district court on its own motion on against Lexington October summary vacated a judgment Township, that it had Michigan Department the previously granted against plaintiffs-coun- Quality, County Environmental the Sanilac Dunn, ter-defendants Donald and Donna Department, Health and the Savages.1 who in the district court’s view up had to The case was removed to federal district adequately then not been represented. juris- court on the question basis federal diction, The court also previous vacated its deci- eight but seven of the claims were place sion to property 18, the Dunns’ in re- May later remanded to state court. On against Michigan Depart- partment The claims the prejudice were dismissed with on 14, Quality, Lexington April ment of Environmental June and December 19, 2005, Township, County respectively. and the Sanilac Health De- counterclaim, but on their Savages filed a counterclaim Savages 2005, the summary judg- undisturbed left the Dunns. against September on granted that it ment 6, 2005, September On against the Savages favor judgment Savages granted time also at that The court claim. Dunns’ claim remaining only Dunns’ appointing receiver. vacated Shortly court. in federal them against summary judgment, the In for sum- Savages moved thereafter, the fact that relied on district court on their counterclaim judgment mary entered on had not been however, Dunns, Dunns. against court concluded The district docket. Af- to that motion. response filed never it vacate could 3, 2005, on November hearing *4 a ter a having to make party’s either without motion Savages’ the granted court district court was unmoved The motion for relief. $252,358.82. judg- The them awarded and lawyer Savages’ of the argument the by however, on the never entered ment, was clients re- to make his that it was unfair by signed it had been docket, though even already they after had the case litigate stamped and signed and district the Savages The summary judgment. won sum- day granting after The the clerk. now ordered district court judgment, the mary why attorneys to show cause Dunns’ the II. failing to not be sanctioned they should authority re court lacks to This coming to and respond to the motion vacating court’s decision view the district attorneys The unprepared. hearing the 2005, 3, the November the order to show eventually satisfied litiga terminate the order not because did cause, against were levied and no sanctions 28 tion on the merits. U.S.C. See them. final, ap therefore that is and A decision 2005, 21, in to assist December On “that ends § 1291 is one pealable, under judg- collecting in on their Savages the merits and leaves litigation on the an order ment, judge signed the district court to do but execute nothing for the receivership. assets the Dunns’ placing v. judgment.” Network Commc’ns Mich. Dunns then ordered the district court The (6th 237, Co., F.2d 238 Cir. Bell Tel. 906 why receivership should show cause to 1990) v. Lines S.R.L. (quoting Lauro permanent, made and scheduled not be 1976, 495, 497, Chasser, 109 S.Ct. 490 U.S. 19, January hearing purpose for that (1989)). setting An order 548 104 L.Ed.2d hearing, 2006. At the show-cause judgment clearly contem prior aside counsel, represented new were Dunns v. proceedings. See Fuller plates further district prompted circumstance which Cir.1990). (6th Quire, 358, 360 916 to only thing that the fair to conclude court over, true there is “reason with It is that this case all was to “start do exception ably grounded” law well common competent representa- having sides both ap that allows for final order rule subsequently to the The court tion.” district jurisdiction “where district literally taking pellate that it was not clarified so,” see one, power acts without do instead court square but was back case Cortez, 488, 491- Stradley v. 518 F.2d also pre-November to its returning case (3d Cir.1975), that does Thus, exception but 93 posture. in this apply it had not case. summary judgment that vacated 3, 2005, power to vacate favor of had on November granted provides they a final had ment” and judgment because must be filed yet been entered the case.2 As this “no than days entry later after of the 59(e). courts have explained, “[district court has judgment” Fed.R.Civ.P. It is clear interlocutory to reconsider power 59(e) inherent subject may motions to Rule reopen any part of a case be orders timely attempts utilized judg- vacate entry judgment.” Mallory fore of a final Co., ment. See v. Metro. Ins. Huff Life (6th Eyrich, Cir. Cir.1982). And the 1991) (citing Marconi Wireless Tel. Co. v. advisory committee accompanying *5 It is that days true 10 from the after Savages argue The entry judgment, party of a who seeks to court’s decision to vacate the a judgment rely 60(b), vacate must on Rule judgment should be viewed as a of and provided therein, the limited reasons relief under Federal Rule of Civil Proce obtaining for relief from a judgment. 60(b), they dure point which out cannot be 60(b) a Such Rule vacatur that does not fit sponte done sua the rule explicitly because within express constraints of Rule 60 requires relief occur “on motion.” may beyond well be a power court’s for Pauley, See United States v. 321 F.3d purposes of exception the common law to (6th Cir.2003) (citing 581 Eaton v. Jamrog, finality Fuller, requirement. 916 Cf. (6th Cir.1993)); v. Lewis F.2d at 360-61. But the district court’s Alexander, Cir. decision this case to overturn its own 1993). argument That is without merit previous only unentered order can con- because the rely district court did not acting sidered as on its own motion within Rule power but rather on its inherent 59(e). the time limits of Clearly Rule act- to prior entry vacate orders to the of final ing power, within its the district court’s judgment. interlocutory appeal- decision is and not able, and we do not question reach the power
The inherent to vacate or whether court somehow erred in the entry judgment ders to of final is modify exercise of its to its own implicitly recognized in Rule 59 of the Procedure, Federal Rules of Civil and is distinct power explicitly granted from the III. reopen Rule 60 to cases well after final
judgment has Appellate jurisdiction been entered. Rule 59 re is lack also fers to judg- vacating motions “to alter or amend a over the order the appoint- Notwithstanding contrary appeal in the statements in this This deals instead with concurrence, position we take no on the final- summary judgment, the order ity summary judgment. finality of the The which was not a final order. simply is not at issue injunction an modifying not an order an order is Such receiver.
ment of 1292(a)(1). § purposes of ap- made and not in nature “interlocutory final- to the any exception under pealable moreover, conclusion, would contrary A Bergeron, 831 v. rule.” Warren with lan- tension be in considerable (5th Cir.1987); also 8 see 1292(a)(1) pro- § § 1292. While guage of (2005) (“There is Proc., § 21.56 L.Ed. Fed. interlocutory appeals of orders vides for from an appeal for an no authorization 1292(a)(2) § allows injunctions, involving a motion to denying vacating, or order ap- of “orders interlocutory appeals receiver.”); vacate, appointment receivers, refusing or orders pointing Miller, Arthur R. Wright, Alan 16 Charles steps to receiverships or to take up wind Practice Cooper, H. Federal & Edward If purposes thereof....” accomplish the 1996) (2d § ed. Procedure and con- receiverships were dissolving orders authori- (“First, general there is no just as injunctions, modifying to be sidered orders refusing order from an ty appeal of receiver- treatment separate then the receiver, authority to is no there appoint 1292(a)(2) superfluous. § would be ships in initial vacating an from an order Indeed, Fifth Bergeron, Warren however, Savages, appointment.”). appoint- out that pointed “[i]f Circuit dissolving receiv- claim that injunc- species were a ment of receivers (cid:127) under 28 U.S.C. ership appealable is 1292(a)(2) tion, § would be redundant.” 1292(a)(1) it amounts to the § because Warren, By distinguish- F.2d at 103. In the alter- injunction. modification of 1292(a)(1) §in injunctions ing between appealable it is native, argue that they 1292(a)(2), Congress ex- receiverships doctrine. Both the collateral under desire to treat orders relevant pressed its lack merit. arguments differently than orders receiverships *6 short, injunctions. In or- relevant to the though appoint the order Even receivership ap- is not dissolving der the stay affecting implemented a receiver injunc- an modifying an order pealable as assets, that order is not receivership the tion. every coer injunction. Not appealable an jurisdiction can Finally, appellate injunction is constitutes an cive order on the collateral order Dailey predicated not be § See R.E. appealable under Co., Ltd., rule, appeal for the of inter which 983 F.2d allows & v. John Madden Co. (6th Cir.1992) “conclusively deter 405282, locutory *2 orders that at 1992 WL al., resolve an im disputed question, mine the Moore et (quoting 9 James Wm. 110.20[1], completely separate the portant § issue from Practice at Moore’s Federal action, effectively (2d ed.1992)). Instead, and [are] an order merits of the is judg a final appeal from injunction ap that is unreviewable to be an considered 1292(a)(1) Energy ment.” v. & grants § when it SEC Basic pealable under Affiliated (6th Cir.2001) Res., Inc., 657, 666 injunctive 273 F.3d part “in or in or denies toto Lybrand Livesay, v. Coopers & complaint....” (quoting Id. demanded in the relief 463, 468, 110.2011], 98 S.Ct. Moore, § 437 U.S. supra, at (quoting (1978)). 218). While we assume L.Ed.2d 351 Savages’ the counter-com Because relief, that the injunctive purposes argument of dissolution the plaint did not demand conclusively in this case receivership of the receivership in incorporated stay issue important completely determined an injunction ap that is is considered 1292(a)(1). merits of the separate from the action— It follows pealable under i.e., should remain whether assets receivership is (1) rather than be returned to ent receivership judge are whether the original owners, original plaintiffs would reasonably expected their be —the effectively upon order is not unreviewable on remand to have substantial difficul- ty putting It is true that some cases have out of his or her mind for the approval plans previously-expressed held the of distribu views or findings receivership effectively tion of assets to be determined to be erroneous or based on unreviewable, (2) evidence that rejected, see SEC Forex Asset must be (5th LLC, Mgmt. reassignment Cir. whether is advisable to 2001), preserve distinguishable. appearance justice, but our case is Or (3) approving plans reassignment ders for distribution of would entail whether. receivership may effectively duplication assets be un- waste and out of proportion any usually gain preserving reviewable because the assets can the appearance they not be recovered once are distributed. of fairness. case, however, id. In this
See assets Robin, (citing Id. at 683 United States v. upon did not unrecoverable become disso (2d Cir.1977); Bercheny v. receivership of the because as lution Johnson, 476-77 Cir. all the plaintiffs, sets were returned to 1980)). case, In this there is no indication plaintiffs were ordered not to waste the personal part on the bias assets, and there is no indication in the judge, and in dismissing appeal we record that the Dunns’ non-wasteful use of have made no determination the first prevent Savages those assets would place way one or another that his views collecting from on a future Be were or his findings erroneous unfounded. recoverable, cause the assets are the dis Moreover, reassign there is no need to effectively trict court’s will decision re case in preserve appearance order to when the viewable makes its justice appearance or the of fairness. respect postjudgment final decision with V. remedies. reasons, foregoing For the is
IV.
jurisdiction.
for lack of appellate
dismissed
reject
Savages’ argu
We also
*7
CLAY,
Judge, dissenting
part
Circuit
in
in
ment
the alternative that
this case
and
concurring
judgment.
the
if
reassigned
judge
should be
to a different
it is remanded for further proceedings.
hinges
This case
on two district court
remanding,
of course are not
We
but rath
first,
3,
orders. The
issued on November
In
dismissing
any
er
the
event we
2005, granted summary judgment
to the
reassign
would decline to
this case because
Savages
respect
with
their counterclaim
ordinarily might
the factors that
call for
against
the Dunns. The second is the
step
present.
a
are not
The standard
such
19,
January
district court’s
2006 order va
reassignment
judge,
for
to a different
ab
cating
grant
summary judgment.
the
of
proof
personal
requiring
sent
of
bias
recu Because Rule 59 of the Federal Rules of
144,
sal under 28 U.S.C.
was articulated
judges
grants
Civil Procedure
district
Inc.
Armco
v. United Steelworkers
or vacate their
of broad discretion
amend
America,
(6th Cir.2002):
[T]he (6th Inc., 129, determining proceed- Cmty. Hosp. whether further co 134 Cir.1990), ings should conducted before a differ- I concur in the result reached 806 plain- for a possible it is final order when majori- with disagree but majority, complaint resurrect- an amended tiff to file respects. significant in two reasoning
ty’s
lawsuit.”)
a district
Just because
ing the
that a
stating
majority errs
First, the
summary judg-
as a
styles his order
yet been entered”
not
had
judgment
“final
it so.
does not make
ment
3, 2005
November
court’s
by the district
Commc’ns, a district
Network
Maj. Op. at
Under
summary
grant
judgment
a final
court’s order constitutes
grant
That
802-03.
on the merits
matter,
it “ends the litigation
when
and
of this
wholly dispositive
was
to do but
nothing
the court
leaves
re
and
a final
constituted
therefore
238, and this
id. at
judgment,”
execute
pos
the district court
of whether
gardless
a
of whether
applies regardless
standard
vacate that or
to later
sessed
entered into
properly
judgment has been
Bell
v. Mich.
Commc’ns
See Network
der.
Cir.1990).
at
In
(6th
id.
other
See
docket.
Co.,
238
Tel.
words,
order becomes
a district court’s
majority cor
although the
Additionally,
final, ap-
if
parties
and,
binding on the
that,
Ey
Mallory
under
rectly states
—
the moment
(6th Cir.1991),
to this Court —at
a
rich,
pealable
dis
F.2d 1273
order,
at the
not
moment
judge signs the
of a case”
any part
may “reopen
court
trict
purely ministe-
performs
clerk
judgment into
entry of a final
to the
id.
docketing the order. See
rial task of
that this
docket,
its claim
id. at
majority’s claims
Accordingly, despite the
a district court’s
authority
from
derives
yet
not
been en-
judgment had
Maj.
that “final
is somewhat dated.
power”
“inherent
court’s November
by the district
authority
tered”
court’s
at 803. As a district
Op.
Maj.
summary judgment,
grant
docketing of
prior to the
reopen matters
802-03,
sum-
granting
Op.
by Fed.R.Civ.P.
at
recognized
final order is
a
final, ap-
a
judgment does
vague mary
constitute
rely
unnecessary
it is
judgment because
pealable
“inher
a
regarding
district court’s
claims
entirety of the re-
considered the
power.”
ent
Savages
maining dispute between
assessing whether
The standard
Dunns,
dispute
and it
of this
disposed
final,
constitutes
court’s order
Commc’ns,
Network
merits. See
on the
in Net-
judgment was described
appealable
F.2d at 238.
Co.,
Bell Tel.
Commc’ns v. Mich.
work
Cir.1990).
sense,
presents
case
In
instant
In Network
from Network
Commc’ns,
different
set of
facts
an or-
the district court issued
the district court
inasmuch as
der,
judg- Comm’cns
styled
as a
or
any
pending
matters
unde-
defendant,
did
leave
though
even
to the
ment
November
at the time of its
subsequent hearing
cided
scheduled a
had
*8
subject to
have been
order which would
plaintiff
grant
to
decide whether
to
the merits. While it is
being litigated on
at 238.
complaint.
amend
Id.
leave to
its
subsequently
court
true that
the district
had
court
“recorded
Because
district
summary judgment,
grant
its
adjudicate
pending
vacated
intent to
express
an
a district court
amend,”
possibility
the mere
that
concluded
to
we
motion
does not pre-
vacate its own order
litiga- might
yet
not
ended the
court had
district
final; otherwise,
being
order from
merits,
concluded vent the
and therefore
on
tion
always be
finality
would
a final
order
order was
prior
the court’s
permits
239;
because Fed.R.Civ.P.
at 238 uncertain
Id. at
see also id.
judgment.
circumstances,
court, in
not a
a district
certain
(“an
dismissing
complaint
is
order
reopen any
to
case “within a reasonable
such an interlocutory appeal is established
60(c)(1).
1292(a)
(b),
§
time” of
Fed.R.Civ.P.
U.S.C.
&
which lists
four
interlocutory
kinds of
Because the district court’s November
orders which
may be appealed to this Court.1 None of
litigation
2005 order
“end[ed]
these statutory bases for such an appeal
nothing
merits and
le[ft]
1292(a)
exist in
§
the instant case. See
&
do but execute the judgment,” it was a
(b). Moreover, while the common-law ba-
final, dispositive judgment,
majori-
and the
sis for allowing an interlocutory appeal
ty
suggesting
errs
otherwise. Network
presents
issue,
us with a more difficult
we
Commc’ns,
808 discretion, to decide judges with broad Ey Mallory v. following majority, The own their to reconsider or not whether may a that district rich, concludes in the principle governing “The decisions. final a case” before a of any part “reopen is new trial motion for on a acting Court’s entered been case has in that judgment trial whether, judgment in Al at 1282. 922 F.2d of into the docket. in to required is order course judge, such prop correctly this states Mallory though injus- an and where injustice; an prevent vague a law, only provided it of osition result, the trial tice will otherwise stating simply proposition, this basis order power as to duty as well has the pow have inherent courts “[district that Davis, (quot- at 133 a trial.” new orders, cites undocketed review er” to F.R.D. Corp., 30 Greyhound Kilgore deci Court Supreme long-decided only to (E.D.Tenn.1962)) add- (emphasis 385, 387 Tele (citing Marconi Wireless Id. sions. ed). 1, 47- States, 320 U.S. v. United Co. graph (1943) and 1731 87 L.Ed. to the instant 63 S.Ct. framework this Applying Co., 258 Brothers Grier did case, Co. v. district court it clear that the Simmons is 475 66 L.Ed. 82, 88, overturning its 42 S.Ct. in discretion U.S. not its abuse vague judg- (1922)). summary the reason of Though grant November Mallory is in rationale order in the Court’s The court’s ness ment. unnecessary for actually is best unclear, it grant was a rely on such own Mallory granting to its an order as the Court construed district court’s 59. Rule 59 as a under Rule brought rationale —inasmuch motion entry of if to trial even a case order a new reopen judge to permits a firmly es seeking is in the docket filed a motion party has judgment final neither 59(d). More- 59. Fed.R.Civ.P. by Rule such relief. tablished en- clerk over, district court never as the a trial a motion for new may file party A original granting the court’s tered days after later than 59 “no Rule under docket, ten- judgment judgment.” Fed.R.Civ.P. entry motions Rule 59 governing day time limit ac- 59(b).2 advisory *10 prior judgment its did not act —it Fuller, “without the to do so.” UNITED America, STATES of F.2d at 360. statutory Plaintiff-Appellee, Yet absent authori- zation for such an appeal, jurisdic- we have tion to hear of an Apolinar TEJADA, Defendant- prior judgment only when a district Appellant. court acts outside of its authority. Id.
Therefore, because the district court acted No. 07-1395. within authority, its we must dismiss this United States Court of Appeals, appeal for jurisdiction. lack of Circuit, Seventh Moreover, as already has been ex- Argued Nov. 2007. plained, the majority is incorrect in sug- gesting that the November 2005 grant Decided April 2008. summary judgment may not constitute a final, appealable order. Because that or-
der litigation “end[ed] on the merits nothing le[ft] for the court to do but
execute the judgment,” easily it meets our
definition of final judgment. Network
Commc’ns, F.2d at 238. Accordingly,
I must dissent from any suggestion that
the November 2005 order did not consti-
tute a judgment, final regardless of the
fact that the district court had the authori-
ty to vacate this order.
CONCLUSION
This case should be dismissed for lack of
jurisdiction because we have neither a
statutory nor a common-law basis for as-
serting jurisdiction over the case. Never-
theless, for above, the reasons described
the majority in suggesting errs that a “fi-
nal judgment yet had not been entered” district court’s November judgment. Maj. Op. at 802- I Accordingly, major- dissent from the
ity’s reasoning, but I concur in the judg-
ment.
notes
States,
1, 47-48,
United
320 U.S.
63 S.Ct.
this rule make clear that Rule 59
at
applies
(1943));
Notes
notes committee run. Fed.R.Civ.P. began to See never Rule clear that rule make companying note). A district (advisory committee’s party a remedy for appropriate 59 is Rule 59 deny or a decision court’s has an order which against seeking relief judg- “in the hinges on whether motion the clerk. See by been docketed yet trial is judge,” a new the trial ment (advisory committee’s Fed.R.Civ.P. 59 According- injustice. necessary prevent (“The than’ is used— note) ‘no later phrase its not abuse district court did ly, the post-judg- include than ‘within’—to rather in- preferring decision discretion be- are filed sometimes motions that ment proceeding adversarial formed by the entry of the actual fore more than to little one amounted own, court, clerk.”) Moreover, “the its Davis, at See default any reason trial for may order new party’s on a one justify granting would case, 59(d). the instant have In We Fed.R.Civ.P. motion.” vacat- broad within its discretion acted provide district 59 to interpreted Rule granted may only for one Rule 60 ten- A motion seeking subsequent to the relief party 2. A Id.; pro- Fed.R.Civ.P. reasons. must six enumerated day deadline Rule contained 60(b). v. Chevron 60. Feathers under Rule ceed Cir.1998). Inc., U.S.A.,