Case Information
*2 NYGAARD, Circuit Judges (Filed October 1, 2015) Kevin J. Witasick, Sr., Esq. [Argued] 219 Bay Road
Ocean City, NJ 08226
Whitney S. Witasick, Esq.
219 Bay Road
Ocean City, NJ 08226
Appellants Jacqueline J. Herring, Esq. [Argued] Warren S. von Schleicher, Esq.
Smith, von Schleicher & Associates 180 North LaSalle Street
Suite 3130
Chicago, IL 60601
Counsel for Appellees
__________ OPINION OF THE COURT __________
NYGAARD, Circuit Judge.
Factual and Procedural Background A disability policy and a business overhead expense policy issued by Appellee Minnesota Life Insurance Company covered Appellant Kevin Witasick. Those policies were later acquired and administered by Appellee Standard Insurance Company. Witasick made claims against both policies, which were honored by the Appellees. A dispute arose, however, concerning the coverage of some of Witasick’s claimed business expenses. After years of discussion and negotiation, the parties ultimately settled their dispute. Standard agreed to pay more than $4 million in consideration to Witasick and Witasick agreed to release all claims—known, unknown, and any future claims— against the Appellee insurance companies. The settlement also contained a covenant not to sue, whereby Witasick agreed not to pursue any cause of action against Standard and Minnesota Life stemming from “any conduct prior to the date the Parties sign this document, or which is related to, or arises out of” the insurance policies. Supp. App. at 29.
While these settlement negotiations were taking place, the United States Government notified Witasick that he was the target of a federal grand jury investigation related to certain fraud charges and business expense claims on his federal income tax returns. Witasick was indicted in October of 2007. To support its charge of mail fraud, the Government relied on information and documents Witasick had submitted *4 to Appellee Standard. An employee of Standard testified before the Grand Jury and then again at Witasick’s trial. Witasick was found guilty of most of the charges, the exception being his acquittal on the mail fraud charge. He was sentenced to fifteen months’ imprisonment.
In November of 2011, Witasick filed a complaint against the Appellee insurance companies. The complaint contained more than twenty claims based on the former policies or on Standard’s cooperation with the Government prosecution. The Appellees asked the District Court to dismiss the complaint, arguing that Witasick’s claims were prohibited by the settlement agreement. The District Court agreed and dismissed the complaint. Witasick filed a motion for reconsideration which was likewise denied. Witasick appeals. We will affirm.
Appellate Jurisdiction
Whether we have appellate jurisdiction is the threshold issue in this case. A notice of appeal must be filed “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). This time limit is “mandatory and jurisdictional.” Bowles v. Russell , 551 U.S. 205, 209-10 (2007) (internal quotation marks omitted). If an order granting a motion to dismiss is not set out in a separate document, then judgment is not deemed entered until “150 days have run from the entry in the civil docket.” Fed. R. Civ. P. 58(a), (c)(2)(B). “[A]n order is treated as a separate document if it satisfies three criteria: (1) it must be self- contained and separate from the opinion, (2) it must note the *5 relief granted, and (3) it must omit (or at least substantially omit) the trial court’s reasons for disposing of the claims.” LeBoon v. Lancaster Jewish Cmty. Cntr. Ass’n ., 503 F.3d 217, 224 (3d Cir. 2007) (citing Local Union No. 1992 , IBEW v. Okonite Co ., 358 F.3d 278, 285 (3d Cir. 2004); In re Cendant Corp. Securities Litigation , 454 F.3d 235, 241 (3d Cir. 2006)).
Here, the District Court’s memorandum opinion granting the motion to dismiss was entered on March 25, 2013. Because Witasick did not file his notice of appeal until September 23, 2013—considerably more than 30 days after the entry of the memorandum opinion—Appellees contend that the notice was filed too late and that we should dismiss the appeal. See, e.g., Bowles, supra . (timely filing of a notice of appeal in a civil case is a jurisdictional requirement). We disagree.
The March 25, 2013, ten-page memorandum opinion
resolved all claims and detailed the District Court’s reasons
for granting the motion to dismiss. However, it did not set
out the judgment of dismissal in a separate document.
Instead, page 10 of the memorandum (under a heading of
“Conclusion”) states that “[a]ccordingly and incorporating the
discussion held during oral argument on the motion, IT IS
ORDERED this 25 th day of March, 2013, that Defendant’s
motion to dismiss the Complaint [16] is hereby GRANTED.”
Supp. App. at 20. An electronic signature (/s/) for Judge
Joseph Rodriguez was appended to the memorandum. Supp.
App. at 20. The problem, however, is that this order is not
self-contained and it includes the District Court’s reasoning.
Therefore, it cannot be considered a separate document.
See
In re Cendant
, 454 F.3d at 243. The District Court itself
*6
seemed to realize that it never entered a separate document
when it dismissed the Appellant’s complaint. In July of 2013,
Witasick filed a motion asking the District Court to enter a
judgment pursuant to Rule 58(a), presumably so he could
appeal. Appellees filed a memorandum in opposition and the
District Court denied the motion as moot in January of 2014. In its order denying the motion, the District Court specifically
noted that “[b]ecause no separate document was entered to
reflect the March 25, 2013 decision, judgment was deemed
entered after 150 days pursuant to Fed.R.Civ.P. 58(c)(2).”
Supp. App. at 28. Accordingly, judgment was not entered
until August 22, 2013—150 days after March 25, 2013.
There is a second questionably relevant document to
the issue of appellate jurisdiction: a docket entry also dated
March 25, 2013 stating “Civil Case Terminated.” Supp. App.
at 21. Appellees point to this entry as a “separate document,”
arguing that it notes the relief granted, and that such
electronic entries can satisfy
the separate
judgment
requirement of Rule 58. This entry, without a doubt, relates
nothing of the District Court’s reasoning.
See In re Cendant
,
We agree, however, with the Appellees’ larger point: electronic entries made by a district court via the federal CM/ECF System can, in certain circumstances, satisfy Rule 58’s requirement. This is hardly controversial. The District of New Jersey, as well as every other federal court, provides for electronic entries and gives them the force and effect of a *8 court order. However, a holding that every electronic docket entry satisfies Rule 58’s requirements paints with too broad a brush.
The federal CM/ECF system allows for three distinct types of case-related entries: text orders, utility events, and minute entries. A text order, as its name suggests, is an order of the court, with specific text granting, denying, or otherwise resolving a motion or, ultimately, a case. See, e.g., United States v. Wecht , 484 F.3d 194, 232 (3d Cir. 2007). Text orders can also be used to set a hearing, order briefing, and direct service. Such orders may be used to rule on substantive motions, like those seeking summary judgment, or those asking for a complaint to be dismissed under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Gannon Int’l, Ltd. v. Blocker , 684 F.3d 785, 791 (8th Cir. 2012). Text orders additionally may be used to resolve other issues that arise during litigation, like motions to suppress evidence, and/or relatively routine motions as determined by the District Judge or Clerk of Court. Indeed, the CM/ECF User Manual for the District of New Jersey specifically acknowledges the use of such orders: “the assigned judge or the Clerk’s Office, if appropriate, may grant routine orders by text-only docket entry for which a Notice of Electronic Filing will be generated. In such cases, no PDF document will be issued and the text order shall constitute the Court’s only order on the matter.” ECF User Manual at page 8 (Rev. 5-1- 2013),
www.njd.uscourts.gov/sites/njd/files/CMECFUserGuide.pdf. Text orders usually have no difficulty satisfying the separate document requirement of Rule 58(a) and In re Cendant , supra . They are separate and self-contained from any actual opinion; they note the relief granted; and they omit (or *9 substantially omit) the District Court’s reasoning. And, significantly, they contain an electronic signature of a judge. The two other types of electronic docket entries are vastly different from text orders. Indeed, they are not orders at all. A “utility event” is an entry which records an event or action in the life of a case and often appears only on a court’s private docket. [5] Utility events memorialize on the docket mundane matters like the addition of an attorney to the docket, the re-assigning of a case to a different judge, the referral of a case to mediation or a special master, the sealing of a case, the appointment of an interpreter or, apropos to this appeal, the termination of a case. These entries differ from “minute entries” in that minute entries reflect time spent in court. Minute entries might memorialize the time spent in a case management conference, a contempt hearing, a motion hearing, or a pre-trial conference. Like utility events, minute entries are not orders of the district court nor are they signed by a judge. As such, they cannot serve as a foundation for an appeal. See, e.g., Theriot v. ASW Well Serv. Inc ., 951 F.2d 84, 87 (5 th Cir. 1992) (“A minute entry, although it is a record of the court’s final decision in a case or of an appellate interlocutory decision, cannot constitute a ‘separate document’ for the purposes of meeting the Rule 58 requirement.”).
*10 Therefore, because no separate document of judgment was filed in this case, the District Court’s decision became final 150 days after it was entered—August 22, 2013. Witasick had 30 days from that date to file a Notice of Appeal. On September 23, 2013, he filed a document with the District Court entitled a “Contingent Notice of Appeal.” Because September 22, 2013 was a Sunday, Witasick’s notice was timely filed on Monday, September 23, 2013. We now turn our attention to that document.
The Contingent Notice of Appeal In July of 2013, Witasick filed a motion in the District Court asking it to enter a separate judgment. On September 23, 2013—the last day he could file a notice of appeal— Witasick filed another motion asking the District Court to enter a separate document. He styled this motion a “Contingent Notice of Appeal of the court’s March 25, 2013 order granting the defendants’ motion to dismiss the plaintiff’s complaint.” Supp. App. at 22-25. In the last paragraph of this motion, Witasick stated “[i]f, however, the Court denies the Plaintiffs’ Rule 58 request, this Contingent Notice of Appeal will then become the Plaintiffs’ formal Notice of Appeal of the Court’s March 25, 2013 Order dismissing the Plaintiffs’ complaint in its entirety.” Supp. App. at 25. This type of document is unorthodox, but not unheard of. See, e.g., CE Design, Ltd. v. Cy’s Crab House North, Inc ., 731 F.3d 725, 727 (7 th Cir. 2013) (“Truck Insurance could have filed a contingent notice of appeal . . . to protect its interests . . . .); In re Synthroid Mktg. Litig., 264 F.3d 712, 716 (7 th Cir. 2001) (party filed a contingent notice of appeal upon advice of the Court).
Federal Rule of Appellate Procedure 3 sets out the
requirements for a valid notice of appeal. The Rule requires
that the notice specify three things: the party taking the
appeal, the order being appealed from, and the name of the
court to which the appeal is taken. Fed. R. App. P. 3(c)(1)(A-
C). This rule is “jurisdictional in nature” and “[we] may not
waive its jurisdictional requirements, even for good cause.”
Massie v. U.S. Dep’t of Hous. and Urban Dev
.,
*12
The nature of Witasick’s contingent notice leaves
some question as to whether he conclusively established his
intention to appeal.
See Hindes v. FDIC
,
However, construing the contents of the entire document liberally, we are satisfied that Witasick, albeit awkwardly, has indicated an intention to appeal. First, Witasick’s contingent notice asks the District Court to enter a separate judgment so that he can appeal. Second, he states that since the District Court failed to enter a separate document of judgment pursuant to Fed. R. Civ. P. 58, he finds it necessary to file a contingent notice to protect his right to appeal. Third, Witasick filed his contingent notice on the day it was due—30 days after the entry of the judgment appealed from. This shows us that Witasick intended to appeal and was well aware of the date by which he had to file his notice. Taken together, these evidence an intention to appeal, regardless of Witasick’s outlying comment to the contrary.
Therefore, even though Witasick’s contingent notice falls somewhat short of the requirements of Rule 3, we will nevertheless find it to be the “functional equivalent” of a notice of appeal. Smith , 502 U.S. at 248 (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)). We strongly emphasize, however, that the use of a contingent notice of appeal is not recommended when attempting to concretely establish appellate jurisdiction. See, e.g., United States v. Carson , 969 F.2d 1480, 1486 n.2 (3d Cir. 1992) (“The method utilized here is not recommended, but we think the letter is sufficient to give us appellate jurisdiction over Carson’s appeal.”).
The Scope of the Notice of Appeal
Next, the parties dispute the scope of our appellate
jurisdiction. If an appeal is taken only from a specified
judgment, we do not acquire jurisdiction to review other
judgments not specified or “fairly . . . inferred” by the notice.
Pension Trust Fund for Operating Eng’rs v. Mortg. Asset
Securitization Transactions, Inc.,
The Merits of Witasick’s Appeal
We use a
de novo
standard of review when reviewing a
district court’s grant of a motion to dismiss.
See In re
Schering Plough Corp. Intron/Temodar Consumer Class
Action
,
F.3d 560, 563 (3d Cir. 2011) (quoting
Bell Atl. Corp. v.
Twombly
,
Witasick’s argument is wholly without merit. As part of the settlement—and for millions of dollars in consideration—Witasick agreed to abandon and relinquish all claims against the Appellees. The settlement could not be clearer:
[t]his document is intended to be a mutual release by the Witasicks and Standard. These Releases include, but are not limited to any presently existing claims based upon the IDI Policy and the BOE Policy, breach of contract, negligent tort, intentional tort, bad faith, fraud, breach of a covenant of good faith and fair dealing, unfair insurance practices, or violation of any statute or regulation, as well as claims for attorney fees and costs.
Supp. App. at 27. Witasick also agreed to release the Appellees from any and all claims related to his alleged entitlement to benefits, and from any future claims, either known or unknown. Supp. App. at 27-28, 29. As the District Court noted, and our own review of the record confirms, the parties wanted to settle all claims, including those known and unknown, past, present and future, regarding the insurance policies at issue here. Notably with the help and advice of counsel, Witasick agreed to the settlement and thereby *16 abandoned the claims set out in the complaint. He also agreed not to sue the Appellee insurance companies, yet went ahead with a lawsuit. Witasick is stuck with the terms of his bargain.
Witasick argues that reliance on a settlement agreement to bar litigation must be specifically pleaded as a defense. We are unpersuaded. Courts regularly take settlement agreements into consideration when dismissing complaints. See, e.g., Blunt v. Lower Merion Sch. Dist ., 767 F.3d 247, 281 (3d Cir. 2014); Coventry v. U.S. Steel Corp. , 856 F.2d 514, 522 (3d Cir. 1988). Also, a Covenant Not to Sue is part of the settlement agreement. This Covenant specifically prohibits Witasick from suing the Appellees “for any conduct prior to the date the Parties sign this document, or which is related to, or arises out of, the IDI Policy, the IDI Claim, the BOE Policy, or the BOE Claim, or which has been released or waived by this Release.” Supp. App. at 29. This is yet another bar to Witasick’s litigation.
Conclusion
We will affirm the order of the District Court dismissing Witasick’s claims because they are barred by the Parties’ settlement agreement.
occurred before the settlement, the malicious prosecution claim is barred. The Appellees, pursuant to the provisions of the settlement
agreement, are entitled to an award of attorney’s fees. As is our practice, we will award costs to the Appellees today as the prevailing party. Fees must be sought, however, in a separate motion, detailing the amount requested.
Notes
[1] While his wife is a named party to this appeal, we will refer only to Mr. Witasick throughout this opinion.
[2] Witasick’s wife was acquitted on all charges.
[3] The District Court found the motion mooted by the filing of Appellant’s notice of appeal in September of 2013. We discuss this problematic document later in this opinion.
[4] As
the PACER website explains, “The Case
Management/Electronic Case Files (CM/ECF) system is the
Federal Judiciary’s comprehensive case management system
for all bankruptcy, district, and appellate courts. CM/ECF
allows courts to accept filings and provides access to filed
documents online. CM/ECF gives access to case files by
multiple parties, and offers expanded search and reporting
capabilities. The system also offers the ability to immediately
update dockets and download documents and print them
directly
from
the
court
system.”
Case
Management/Electronic
Case
Files,
https://www.pacer.gov/cmecf/;
see also Ragguette v. Premier
Wines & Spirits,
[5] The CM/ECF system includes both public and private docket entries. Of course, public entries are available to the general public. However, “[p]rivate docket entries are for use by chambers and COA staff only and are not available to the public.” Third Circuit Court of Appeals Technology Guide , page 12, § 4.2 (August 4, 2014).
[6] The Supreme Court’s admonition
to apply
these
requirements liberally has special force where
pro se
litigants
are concerned.
Powell v. Symons
,
[7] Witasick also filed a Rule 59(e) motion challenging the District Court’s dismissal, which he failed to challenge in their notice of appeal. Because Witasick did not file a new or amended notice of appeal encompassing the order denying the Rule 59(e) motion, we lack jurisdiction to consider that
[8] Witasick also argues that a malicious prosecution claim survives outside of the settlement agreement/release. Based on Standard’s cooperation with the federal government’s criminal prosecution, Witasick maintains that this claim was born after he executed the settlement. But he contradicts himself by specifically stating that the alleged malicious prosecution began in 2002, five years before the settlement. Appellant’s Brief at 44. This claim, however, is barred by the settlement agreement, no matter when it accrued and is wholly without merit. Witasick agreed to release all claims that accrued prior to the execution of the settlement agreement. Because Witasick explicitly released all claims against the Appellees that are predicated on conduct that