*1 CONSUMER al. v. PROVIDENT GRIGGS et CO. DISCOUNT 29, 1982 November Decided No. 82-5082.
Per Curiam. petition certiorari of a notice validity questions after the judg- the District Court’s entry ment but while the appellant’s motion to alter amend remained pending the District Court. brought petitioners civil action in the United *2 Pennsyl- Eastern Court for the District
States District seeking statutory damages alleged for an vania, violation Lending Stat. Act, 146, amended, Truth in as Regulation § seq., Z et and of the Federal Re- U. S. C. 1601 (1982). §226.1 seq. et On Board, serve CFR December petitioners’ granted 1980, the District Court motion 24, finding judgment, respondent’s summary that the disclo- security after-acquired property sure interests had misleading. Supp. 503 F. been inaccurate and 246. On pur- November the District Court 5, 1981, entered order 54(b) directing suant to Federal Rule of Civil Procedure that respond- a final On be entered. November timely judgment, pur- ent filed a motion alter amend the suant to Federal Rule of Civil 59. On November pending, respondent while was that motion still filed a notice of On November 23, the District Court de- judgment. nied the motion to alter or amend the Neither opinion response petition below nor the to the for a writ any appeal of certiorari indicates that further filed.
The United States Court of for the Third Circuit accepted jurisdiction of the and reversed the District judgment. Ap- Court’s 680 F. 2d 927 The Court of peals explained jurisdiction its decision to take as follows: Griggses urge appealable
“The that this matter is not be- 4(a)(4) Appellate cause Rule of the Federal Rules of Pro- provides ‘[a] cedure notice of filed before the disposition of the above have no motions shall 4(a)(4) Appellant satisfy effect.’ did fail to but though premature subject to dis- generally appellant proceed we missal, have allowed appellee prejudice resulting unless the can show premature filing First Penn- notice. Tose v. sylvania (3d Cir.), Bank, N.A., 648 F. 2d 882 n. cert. denied, [454] [893] . . . (1981); Hodge accord Williams Hodge, (3d 1975); Cir. of Okoboji, (8th 1979). See Cir. v. Town 599 F. 2d (2d ¶ 204.14 ed. also Practice Federal 9 Moore’s shown no prejudice have case, Griggses In our Id., at n. 2. of appeal.” of a notice the deci- conflicts with of Rule analysis Because this to the lan- contrary and is of Appeals1 of other Courts sions Federal of the 1979 amendments purposes and guage re- Procedure, grant petitioners’ we Rules pauperis their peti- leave proceed quest informa reverse. certiorari, and we tion for a writ *3 that a fed understood 1979, was generally Even before should not court of appeals and a federal eral district court simultaneously. over a case to assert attempt jurisdiction of jurisdictional sig a notice of an event appeal on the court of appeals jurisdiction nificance —it confers over those aspects the district court of its control divests g., e. United States v. See, the case involved in the appeal. Ruby v. Secre Hitchmon, 587 (CA5 1979). F. 2d 1357 Cf. tary Navy, (CA9 1966) (en United States 365 385, F. 2d 389 (notice banc) not di order does of appeal unappealable denied, vest 386 U. S. district court of cert. jurisdiction), (1967). 1011 court Under district pre-1979 procedures, vacate, alter, lacked jurisdiction entertain a motion to amend a filed. See judgment after a notice of was appeal Hattersley Edmond Bollt, (CA3 v. v. 512 F. 1975); 2d 209 Authority, County Hospital
1 See United States v. Valdosta-Lowndes
(CA11
Youens,
Beam v.
1177, 1178,
1982);
668
F. 2d 1275
F. 2d
n. 2
664
(CA5
Century
Lami
(CA5
Bolger,
Williams
1982);
1980);
F.
410
v.
633
2d
nating,
Montgomery,
Ltd. v.
(CA10),
dism’d, 444
U. S.
59
(CA2 1958).
In 1979, the Rules were amended to both the liti- gants’ respective jurisdictions. *4 timetable and the courts’ requirement The new that a district court “transmit forth- appeal appeals with” valid notice of to the court of ad- processing vanced the begin time when that court could 3(d). App. Fed. Rule Proc. time, At the same in prevent unnecessary appellate order to review, the district given express authority timely court was to entertain a mo- tion to alter or amend the under Rule even appeal after App. a notice of had been filed. Fed. Rule Proc. 4(a)(4). only If changes, these had been the the theoretical inconsistency suddenly noted above would have taken on practical significance. A broad class of situations would of ap- courts courts in which district created been have the same modify had the power have both peals that potential avoided 1979 amendments judgment. in of jurisdiction courts of the by depriving conflict situations. such 4(a)(4) states:2
New Pro- Rules of Federal Civil under the motion “If a timely . . . party court by any district in the is filed cedure all for for parties time , appeal 59 ... the . . order . such denying entry the run from shall the disposition filed before appeal A notice motion. A of ap- no effect. new notice have shall motion] [such time measured the prescribed filed within must be peal as of the motion disposing of the order entry fees shall be No additional required above. provided filing.” such Appellate explained Rules the modifica Advisory on Committee
tion as follows: filing would make it clear that after proposed
“The
amendment
motions,
appeal
disposition
should await
specified post
a notice
trial
proceed
appeal
.
be
with the
while
[I]t
the motion. . .
undesirable
granting
of which would vacate
district court has before it a motion
rule,
present
.
since
judgment appealed
from.
. . Under the
or alter
transmitted,
docketing may
place
until the record is
not take
See,
Stokes
g.,
likely
is much less
to involve waste effort.
e.
(5th
Inc.,
Peyton’s
Further,
The United States Court of for the Third Circuit position notwithstanding has that, taken the the 1979amend ments, retains discretion under Federal Rule of premature to waive the conceded in defects no Pennsylvania tice Tose v. First Bank, N.A., 648 879, 882, n. denied, cert. S. 893 U. We disagree. appeal The notice of this case on Novem merely nullity. ber was not defective; it was a plain language Under the Rule, current appeal appeal “shall have effect”; no a new notice of “must be filed.” In is if short, it as no notice of were filed at all. And if no notice of is filed at all, jurisdiction lacks is act. It well settled that “ requirement timely ‘mandatory aof jurisdictional.’” Dept. Director, Browder v. Illinois (1978).3 Corrections, petitioners proceed The motion of leave to forma pauperis petition granted. and the for a writ of certiorari are vacated, for fur- and the case is remanded proceedings opinion. ther consistent with this
It is so ordered. 3Rule 2 ap does not purport to vest in the court of unlimited discretion peals. explicitly That Rule lim states it authorizes is that the discretion 26(b), prohibits ited which enlarging courts time for a notice of appeal. *6 Marshall, dissenting.
Justice argument briefing on merits, the benefit Without conclusory majority footnote—decides that a Court —in Ap- Appeals 2 of the Federal Rules of invoke Rule cannot appeal. in a notice of pellate a defect to waive Procedure power majestic to decide this of its exercise Court’s inappropriate an question case because alternative respondent disposition ground exists: the lower court’s for following the denial of effective notice fact filed an judgment.1 Court’s the District motion to amend interpretation majority’s of Rule 2 is inconsistent event, prior language decisions, with of the Rule and Court with may grave consequences pro se have liti- decision and the parties gants. should allow the minimum, At a Court opportunity in a on issues brief the merits. to address these respectfully I dissent. pre- majority respondent’s of a describes
While the subsequent appeal, ac- it fails to mention the mature notice of following Appeals by respondent in the Court of tions taken Rule of Civil Proce- District Court’s denial of the Federal Respondent’s actions on 23,1981. dure 59 motion November days amply the content of November 23 satisfied within 30 3(c). requirements Appellate of Federal Rule of Appeals On the Court of docketed December same filed. That and the record from the District Court was day, Appeals to re- a letter sent the Clerk notify- spondent’s copy petitioners’ counsel counsel with a ing the record them that the case had been docketed allow will Presumably, majority’s proceedings” remand for “further no filed an effective respondent the Court of to consider whether Co., 458 U. S. Hollywood Car United Motor States tice of Cf. curiam) (where jurisdiction, (per lacks the lower court dismiss Appeals to reverses and with instructions to the Court remands Corrections, 434 U. S. Director, Dept. Browder Illinois appeal); (1978) (Court jurisdic lacked simply where Court reverses untimely appeal). tion due to
filed. The Clerk’s letter noted that a brief on the merits already by respondent, had been due to a prior misunderstanding.2 respondent’s The Clerk asked writing your if counsel advise the court “in intention to rely App. on filed.” the briefs See C to Pet. for Cert. respondent December
On sent two letters to the Court *7 Appeals, both of which were received on December 15.3 respondent letter The first stated that intended to file a new rely appen- in brief the docketed case but would on the same dix that had filed. been The also letter included a comply in disclosure statement order to with a local Third provided, Circuit rule. The second letter in accordance with 30(b), Federal Rule of a statement of respondent present the issues which intended to for review Appeals designation portions to the Court also a of the appendix respondent rely. Copies of the on which petitioners. both of these letters were served on counsel for Under the circumstances of this in case, viewed their en- tirety, respondent clearly timely a notice of as 3(c). by pro- defined Rule That Rule was amended 1979to “[a]n appeal informality vide that shall not be dismissed for appeal.” Advisory form or title of the notice of Com- 2Respondent early filed a brief on 1981 in the mistaken belief summary that final 2,1981, had been entered. On October Appeals Court of Court, remanded the case to the District which subse quently directing entry entered an order judgment pursuant of final 54(b). Federal Rule of Civil Procedure 3The Clerk’s for Appeals Office the Third Circuit enters only pleadings on separate its docket sheet. file for all cor It maintains respondence relating by respondent to a docketed case. The letters sent are in Appeals 81-2989, the Court of correspondence file for No. case Court of docket number for The docket sheet this case. of Appeals 4, 1981, in No. a notice 81-2989 states that on December appeal by respondent’s apparently counsel filed. This is a reference copy to a certified District appeal, notice of which the along Court transmitted with the record. significance explain as of the amendment
mittee Notes follows: right by important not be lost
“[I]t
that
is
of decided cases it
In a number
mere form.
mistakes
long
notice met
so
as the
that
held
has been
function of
indicating
appeal,
paper
an intention
by
complied with. See,
has been
the rule
the substance of
1974)
(C.
g.,
5th,
41;
A.
488 F. 2d
Lewis
v.
e.
Cobb
1972)
(C.
Holley Capps
The Cobb case larly There, the Court of concluded instructive. may appeal requirement be satisfied that “the to the court or either to the district statement, made clearly party’s Appeals, intent to evinces the Court of 1974) (CA5 (empha- appeal.” Lewis, Cobb *8 added). that such a statement The court reasoned sis objectives “accomplishes Rule 3 notice of the the two basic (1) taking notify requirement: anof the Court of the taking appeal; notify opposing party of of the and the appeal.” Ibid. days during by respondent 30 The actions undertaken amply requirement of after satisfied the Rule’s November party. opposing Appeals4 to the of and to the notice Court 23 were transmitted papers by respondent filed after November Lewis, Court. Cobb of Appeals to the Court rather than to the District 2d, may be satisfied requirement F. at makes clear that the notice Ap the Court statement made either by a the District Court In peals. vein, a similar Federal Rule of appeals,” mistakenly if a in the court states that “is filed notice notice, and the of the clerk of that court should note date Thus, a so noted.” “shall be deemed in the district court on the date filed a fatal defect Appeals clearly not mistaken days Ap- after Court Within November peals respondent’s previ- it the the case, had before record of respondent ously on the a letter from merits, filed brief indi- cating brief its intention to file a new on the merits and also containing respond- statement, and a letter from a disclosure stating precisely those which to be ent issues were raised on portions designations providing and also of the appendix upon respondent rely. which Similarly, petitioners had from the received notice Court Appeals case filed, that the had been docketed and record respondent they copies had received from of the letters 30(b) Appeals, to the which sent Court included Rule presented. issues to statement be specific by respondent actions taken after November provided adequate appeal. Any notice of its intent to empty other conclusion exalt form and ritual over com- supra, mon sense. Lewis, As court stated Cobb v. upon which decision Committee relied in amending 3(c), harking “‘it would we think be a back to rigorism formalistic of an earlier and as time, outmoded well justice, travesty upon extremely simple pro- aas to hold the by required Jumbo, cedure itself a Mumbo Rule is kind of comply formalistically and that the failure to with it defeats rights.’” quoting Crump substantial 2d, F. at (CA5 Hill, respondent appeal, Because filed an effective compelled ap- to reach the merits of the peal. interpretation discretionary The lower court’s itsof case, the Rules. respondent appears ap- to have filed a notice of 3(c) peal as defined 15. with the Court of on December By date, *9 the District already Court the record and had transmitted copy Appeals, certified of the of Court of notice the appellate and the appeal. court had the these circum- docketed Under stances, Appeals place the in Court of have been which the sensible file Respondent expected a new notice. not to return should have been the 4, longer District after no Court when that court had the December record. Appellate
authority of Pro- Rules of the Federal Rule disposition unnecessary proper of the thus cedure was Consequently, I do not think this case respondent’s procedural making appropriate new law. for vehicle is an HH b-I join review, I would decline to if case warranted Even this by rejecting provided summarily majority basis in of re- to reach merits for its decision Court of spondent’s appeal. on Rule 2 relied of the Federal court good provides Appellate that Procedure, which Rules of may, except provided appeals of as otherwise cause “a court 26(b), requirements provisions suspend in Rule particular ... on its case own of these rules According Notes, . to the Committee motion. . .” general to the courts to re- the Rule “contains a authorization litigants consequences of default where manifest lieve App., injustice p. S. 352. would otherwise result.” U. C. discretionary Invoking authority under Rule on Rule Third Circuit declines to dismiss based 4(a)(4) showing prejudice in the of a to the defaults absence appellee. Pennsylvania Bank, N.A., Tose v. First See (1981); Hodge F. 879, 882, 2, 2d n. denied, cert. (CA3 Hodge, 1975), F. 2d 2d cited in 680 F. below). (case ground, 2n. On this concluding exercised its discretion this case after petitioners any prejudice.5 had failed to show rejecting in- a two-sentence footnote the lower court’s terpretation only majority dis-
67
26(b)
not
the relevance of
does
Rule
majority
explain
is that
meaning
this case. The common-sense
Rule
a
late notice of
See United
may
recognize
appeal.
court
not
a
Robinson,
States 224
220,
26
U. S.
Rule
its
title deals with an extension
of
time;
the words of the
very
26(b)
*11
litigants
gants.
reports
cases in which
filled with
are
postjudgment
“reconsider,”
“vacate,”
to
motions
filed
judgments.
“reargue”
The lower
adverse
aside,” or to
“set
exception treated these as Rule
have almost without
courts
regardless
Indeed,
label.7
even motions
of their
motions,
59
60(b),
days
judg-
captioned
10
but filed within
Rule
According
normally
Rule 59 motions.8
ment,
deemed
are
“nullity”
majority,
if
is
becomes a
a notice of
pending.
is
under the
Thus,
a Rule 59 motion
filed while
unwittingly
litigants
majority’s approach,
file invalid
could
they
simply
a
because
had
notices of
questioning
which,
court
unbe-
motion
a district
is Rule 59 motion. The mere failure to
them,
knownst
appreciate
59
the distinction between a Rule motion and
60(b)
appli-
motion,
when combined with
draconian
by majority,
adopted
require
cation of Rule
appeal.
g.,
Wainwright,
Apel v.
See,
the dismissal of an
e.
cert,
1982)
(CA11
(on
rehearing),
petition for
Ill necessary If not, as I do that it believes, Appeals’ interpretation of case to examine the Court of notify parties at 2,1 least that the Court consid- Moore, Ward, Lucas, 7 See 9 J. B. Practice & J. Moore’s Federal g., see, e. 204.12[1], p. 4-67, alone, ¶ n. 26 the Third Circuit Jones, (1978) (motion Richerson v. judg 572 F. 2d to reconsider (1970) Nowalk, ment); Corp. Sonnenblick-Goldman 2d v. 420 F. (motion Railway Gainey & Steam judgment); Brotherhood of to vacate v. Clerks, (motion ship rehearing 303 F. 2d or reconsider ation). in the of an Sometimes characterization resulted dismissal has g., Dodge 8 E. (CA4 Codesco, 1978); Alley Dove Ho v. 2d 807 v. F. tel, Ranch Assn. Sea App. (1977); 179 U. S. D. 2d C. 551 F. (CA9 Comm’ns, Coastal Zone F. Conservation 2d California (CA5 1976); Co., Woodham Cystoscope American 2d 335 F. they may oppor- summary disposition, have ering so that tunity Without such brief- on the merits. to submit briefs necessarily ing, I increases. therefore of error the risk dissent. Rule notes that the granted explicitly cretion in Rule 2 limited Federal 26(b), ap- that a court which states peals “may enlarge appeal.” not time majority apparently Appeals’ not conclu dispute does the Court of sion that the to com appellant’s dismissal of an on failure based ply requirements with the manifest technical be a injustice in prejudice the absence of appellee. to the
Notes
Notes “Rule Advisory Committee a prohibits extending for taking court of the time added). or U. C. seeking (emphasis App., review” S. In of p. fashion, provisions 352. similar Federal Rule of Civil Procedure on which Rule 26 based,6 discuss expiration in terms of enlargement extending date there is that a period. short, question little court ap- 26(b)— peals may not —consistent with the mandate of Rule effect to a late notice of But give appeal. is certainly 26(b) debatable whether Rule prohibits recognition 4(a)(4) notice of appeal. Only Rule explicitly 4(a)(4) bars such but recognition, does not serve as an express limitation on Rule 2. The Court concludes that, because of failure respondent’s to refile the same notice of filed four days prema- turely, absolutely barred from ad- merits flies dressing This conclusion face of previous our declaration that it is “too late in day and entirely contrary to the Rules of spirit the Federal Civil Procedure for decisions on on merits to be avoided Davis, Foman basis such mere technicalities.” (1962) U. S. (discussing Federal Rule of Civil 73(a), predecessor See also Bankers Federal Rule of Appellate Procedure curiam) (per Trust v. Mallis, Co. (“the technical the Rules of requirements [imposed by Appel- late for a mandatory Procedure] not appeal were ”). where the notice ‘did not mislead prejudice’ App. See 1967 Committee Note to Fed. Rule Proc. App., p. U. S. C. 367. interpretation also creates new of Rule The Court’s unsophisticated pro pitfalls liti- se and other serious