Melvin Memphrey CARTER, Plaintiff-Appellant, v. BEVERLY HILLS SAVINGS AND LOAN ASSOCIATION; Southland Company, Defendants-Appellees.
No. 86-6610
United States Court of Appeals, Ninth Circuit
Decided Sept. 6, 1989
As Amended Sept. 26, 1989
884 F.2d 1186
While Meininger lends some support to Ekelin‘s argument, its central proposition is no longer good law. A few years after Meininger, another California appellate case, Sciarrotta v. Teaford Const. Co., 110 Cal.App.3d 444, 167 Cal.Rptr. 889 (1980), took up Meininger‘s refrain. In Sciarrotta, the court rejected attorneys’ fees for a successful plaintiff who had sued to enforce a right under a building contract unrelated to the situations covered by the contract‘s fees clause. The court relied in part on Meininger to reach this conclusion. Id., 167 Cal.Rptr. at 892. In 1983, the California legislature amended section 1717 to read, “[w]here a contract provides for attorney‘s fees ... such provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.”
In light of these considerations, we reverse the district court‘s partial fee award. We remand for the trial court to award reasonable attorneys’ fees for all of Callahan‘s case, including fees related to this appeal.
V.
We reverse and remand the attorneys’ fee ruling for reconsideration in accordance with this opinion. We affirm all other aspects of the judgment.
AFFIRMED IN PART, REVERSED and REMANDED IN PART.
Melvin Memphrey Carter, Los Angeles, Cal., pro per.
Gregory L. Dillion, Newmeyer, Landrum & Dillion, Newport Beach, Cal., for defendants-appellees.
HUG, Circuit Judge:
This case involves an appeal from the denial of a Rule 60(b) motion to vacate a judgment dismissing Carter‘s action to set aside a foreclosure sale on his home. The district court judge, believing that the parties had entered into a settlement agreement, dismissed the underlying action with a retention of jurisdiction for sixty days to reopen if settlement was not completed. Carter made a Rule 60 motion approximately eighteen months later, which the district court denied as untimely. Because the underlying judgment was never entered in accordance with
I.
Facts
Carter brought this action in the California Superior Court against Beverly Hills Savings and Loan and Southland Company,
This case was removed to federal court on the grounds that it was an action affecting Title 11, thus affording federal jurisdiction. A pretrial conference was set for March 25, 1985, and a trial date was set for April 30, 1985. Prior to the pretrial conference, the attorneys for the parties entered into a stipulation requesting that the district court vacate the existing pretrial conference and trial dates because the parties had agreed in principle upon a settlement. The settlement agreement was basically an agreement whereby Carter could repurchase the house. The stipulation noted that the settlement “would require the parties and their counsel to prepare releases, escrow instructions, title reports, etc. relating to the subject property which will take 30 days to prepare.” The parties did not stipulate to dismissal of the action but instead only sought an order vacating the pretrial conference and trial dates, with a status report to be filed in 45 days. An order incorporating these terms was provided at the end of the stipulation document, but was never signed by the judge. Instead, at the time scheduled for the pretrial conference, the matter was called before the judge, who, after noting that counsel were not present, stated:
All right. The court has been informed through the law clerks that the matter‘s been settled, but we haven‘t got any paper work on that. Our standard minute order dismissing the case as settled with a 60-day retention of jurisdiction will issue.
If you could make a note on that one, Bob.
A form document entitled “Civil Minutes-General” was thereafter filled in showing the case title, and the presence of District Judge Harry L. Hupp, Deputy Clerk Robert Bolton, and Court Reporter Bob Stark. The minutes then set forth the following entry:
PROCEEDINGS: Pre Trial Conference
Counsel not present. Counsel inform that this matter has settled. Court dismisses the action by reason of settlement and retains jurisdiction over the matter for 60 days to vacate this order and to reopen the action upon a showing of good cause that the settlement has not been completed and further litigation is necessary. Entered ____ JS-6.
The minutes bear a stamp showing that they were entered on March 26, 1985. This entry stamp was initialed by a deputy clerk with the initials “SB.” Another stamp shows that the minutes were mailed to counsel for the parties. These minutes were entered in the civil docket book as follows:
3-25-85 sb 18. crt dism actn reason of settlmnt & retn jurdctn 60 reopen if settlmnt not completed (ENT 3-26-85) MD JS 6 Mld cpys
Approximately 15 months later, on August 20, 1986, Carter filed a motion to remand, which was eventually taken off calendar and never granted or denied. On September 12, 1986, Carter notified the court that he was substituting himself for the attorney who had been representing him, and would proceed pro se. On October 9, 1986, Carter filed a motion to issue a preliminary injunction, a motion to refer the case to the district attorney, and a motion to reopen the case. The district court denied these motions on November 3, 1986, stating that the time within which to make a Rule 60 motion had long since passed, and the motions appear to have no merit. Carter timely appeals. We review the district court‘s denial of a Rule 60 motion for an abuse of discretion. Thompson v. Housing Auth., 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986).
II.
Timeliness of Rule 60(b) Motion
The district court denied Carter‘s Rule 60 motion as untimely. A motion under
A.
The use of the words “entered or taken” creates some ambiguity as to when the time for filing a Rule 60(b) motion begins to run. We find no case that differentiates “taken” from “entered“. The Federal Rules of Civil Procedure have established a procedure by which a judgment is to be entered. The Supreme Court has commented that the purpose of these rules in relation to filing a notice of appeal, is to make it clear when the time for filing a notice of appeal begins to run. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85, 98 S.Ct. 1117, 1119-20, 55 L.Ed.2d 357 (1978) (per curiam). The need for clarity is equally compelling when it comes to filing post-judgment motions under Rule 59 and 60. Both these rules contain time requirements which are as rigidly applied as the time requirement for filing a notice of appeal. See
It follows that where a final judgment complying with Rule 58 was never entered, a post-judgment motion may not be deemed untimely. Cf. Allah v. Superior Court, 871 F.2d 887, 890 (9th Cir.1989) (unless the judgment is entered in compliance with Rule 58, a party will not ordinarily be found to have exceeded the time limits for filing a notice of appeal).
B.
We therefore now turn to the question of whether the judgment Carter was seeking to reopen through his Rule 60(b) motion was properly entered. Entry of judgment is governed by
Rule 58 also requires that the order be signed by the clerk. The signature of a duly authorized deputy clerk would be adequate. A clerk‘s ministerial duties may be performed by a deputy clerk.
The entry of the court‘s action in the civil docket book confirms that the requirements of Rule 58 were not met. As previously noted, the entry in the civil docket book is as follows:
3-25-85 sb 18. crt dism actn reason of settlmnt & retn jurdctn 60 reopen if settlmnt not completed (ENT 3-26-85) MD JS 6 Mld cpys
Beverly Hills Savings and Loan relies upon Beaudry Motor Co. v. ABKO Properties, Inc., 780 F.2d 751 (9th Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986). In that case, the district court issued a minute order which stated “IT IS ORDERED.” That document was signed by a deputy clerk, entered in the civil docket book, and mailed to counsel. Id. at 754-55. In this case, we have civil minutes which do not bear the imperative “IT IS ORDERED,” and are not signed by the deputy clerk who prepared them. Although the civil minutes were entered in the civil docket book, they do not constitute a separate order nor were they entered as an order. This case is thus controlled by Calhoun rather than Beaudry Motor.
C.
We next consider the question of whether the decision on March 25, 1985 is a final judgment from which a Rule 60(b) motion would lie. The Supreme Court in Bankers Trust Co. distinguished between (1) the situation in which a decision was never entered, as provided in
Essentially, the same situation is present in this case with regard to the Rule 60(b) motion. The separate-document requirement of Rule 58 was not met although the decision was entered on the civil docket, fulfilling the requirements of
The possible question of finality raised in Bankers Trust Co., 435 U.S. at 384 n. 4, 98 S.Ct. at 1119 n. 4, is obviated because of the entry of the decision in the civil docket. However, the entry was not of a judgment that complied with Rule 58 and, thus, the time for filing an appeal or post-judgment motions did not commence to run. Thus, the district court erred in denying the 60(b) motion as untimely.
D.
We note finally that the facts of this case support the logic of our conclusion that the Bankers Trust Co. analysis applies to post-judgment motions as well as appeals. Because a judgment complying with Rule 58 was never entered, Carter could still file a notice of appeal, and it would be deemed timely. Allah, 871 F.2d at 890. Were we to hold that Rule 58 had no bearing on the time requirements for filing a Rule 60(b) motion, Carter‘s Rule 60(b) motion would be held untimely, at a time when he could still file a timely appeal of the underlying judgment. Given that Rule 60 motions are usually the tool used to obtain relief from a final judgment after the time for filing an appeal has passed, this result would be extraordinary.
E.
The dissent speculates that our ruling creates a precedent that will lead to administrative inconvenience for clerical person-
III.
Merits of 60(b) Motion
In addition to finding Carter‘s motion to reopen untimely, the district court also specified the alternate grounds that the motion appeared to have no merit. The district court dismissed Carter‘s action based on his understanding that the parties had settled the action and had stipulated to a dismissal. Such a dismissal would have been proper under
Here the parties did not move for or stipulate to dismissal, either orally or in writing. Neither party appeared at the pretrial conference at which the judge decided to dismiss the action, and the written stipulation that the parties filed only asked that the pretrial conference and trial date be vacated, not that the action be dismissed. Thus there was no basis for the district court to dismiss the action.1 Accordingly, Carter‘s motion to reopen that dismissal, which we hold was timely, should have been granted because there was no basis for an involuntary dismissal under
We reverse the action of the district court, vacate the dismissal, and remand for further proceedings on Carter‘s underlying action.
REVERSED and REMANDED.
KOZINSKI, Circuit Judge, dissenting.
The majority finds the minute order below insufficient in three respects: (1) It failed to satisfy Rule 58‘s separate document requirement; (2) it failed to satisfy Rule 58‘s requirement that judgments be signed by the clerk; and (3) it was not entered in the docket in accordance with Rule 58. I disagree with all three propositions. I fear, moreover, that the majority opinion will unnecessarily complicate the docketing responsibility of the district courts, creating greater opportunity for confusion and error.
“Every judgment shall be set forth on a separate document.”
But this isn‘t our first time; it is our third. First, in Calhoun v. United States, 647 F.2d 6 (9th Cir.1981), overruled on other grounds, Acosta v. Louisiana Dep‘t of Health & Human Resources, 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986) (per curiam), we held that a document entitled “Minutes of the Court” failed to satisfy the separate document requirement where it merely referred to an order rather than purporting to be an order itself, 647 F.2d at 8-9; it was not mailed to the parties, id. at 9; and it was never entered in the docket as an order. Id. Next, in Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751 (9th Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986), we held that a minute order did satisfy Rule 58‘s separate document requirement where it stated on its face that it was an order, 780 F.2d at 755; it was mailed to the parties, id.; and it was entered in the docket as an order. Id. Beaudry took full account of Calhoun, and distinguished it on precisely these three grounds.
The distinctions are picayune, but our task is clear: We must decide whether the minute order at issue in this case is more like the one in Calhoun or the one in Beaudry. The answer is equally clear: The order falls on the Beaudry side of each of the three lines Beaudry drew between itself and Calhoun.
A. While the document at issue in Calhoun merely referred to proceedings at which a motion was denied, the corresponding document in Beaudry “does not reference proceedings but is clearly by its language a decision of the court.” 780 F.2d at 755. Here, the document entitled “Civil Minutes-General” reads in part: “Court dismisses the action by reason of settlement and retains jurisdiction over the matter for 60 days to vacate this order....” Majority op. at 1188 (emphasis added). The document claims to be a decision of the court in two different ways. First, it announces the court‘s disposition of the case in the present tense, suggesting that the document itself is dismissing the case, rather than referring to some other court action with that effect. Cf. Calhoun, 647 F.2d at 8 (past tense—“Motion argued and ordered denied“—indicating that the document at issue was a description of an order rather than an order itself). Second, the document explicitly calls itself “this order.” Is there any clearer way of issuing an order? Cf. Beaudry, 780 F.2d at 755 (“The copy of the minute order with its language ‘IT IS ORDERED’ clearly put plaintiff‘s counsel on notice that an order had been entered against his client.“); id. at 755 n. 3 (“plaintiff‘s counsel received a document, the sole contents of which informed him that his post-judgment motions had been ordered denied and which was file stamped. We have no trouble concluding that in these circumstances a reasonable person would realize that the court had entered an order finally disposing of the case.“). As I see it, the document at issue here is much more like the one in Beaudry than the one in Calhoun.
B. In Calhoun, the clerk did not mail copies of the disputed document to the parties, 647 F.2d at 8; in Beaudry, the clerk did. 780 F.2d at 755. Here, the clerk mailed copies to the parties. Majority op. at 1188. Again, we fall on the Beaudry side of the line.
C. The document in Calhoun contained no stamp or other notation indicating it had been entered as an order, 647 F.2d at 8; in Beaudry, the document included such a stamp. 780 F.2d at 755. Here, “[t]he minutes bear a stamp showing that they were entered on March 26, 1985.” Majority op. at 1188. Once again, this case tracks Beaudry rather than Calhoun.
Beaudry and Calhoun have given us three extremely fine distinctions to work with when considering whether Rule 58‘s
2. The Clerk Signature Requirement
“[T]he clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment.”
But Rule 58 nowhere requires that the signature below a minute order be that of the same clerk who prepared the order. The majority comes to this conclusion without citing any authority, and I know of none; nor do I think it can fairly be derived from the text of Rule 58 alone. Moreover, such a strict rule makes little practical sense. Many district courts, including in particular the Central District of California where these events took place, employ large numbers of deputy clerks. When one deputy gets sick, or goes on vacation, or is busy in court, he may ask another to sign a minute order he prepared the day before. I see no plausible reason to invalidate such an order.
It is bad enough to add a new judicially-created requirement to Rule 58; it is even worse when that requirement serves no conceivable purpose. I would hold that the minute order below satisfied Rule 58‘s clerk signature requirement.
3. The Docket Entry Requirement
“A judgment is effective only ... when entered as provided in Rule 79(a).”
But Rule 58 only requires that a judgment be set forth on a separate document; it does not also require that the corresponding docket entry state that a separate document exists. Instead, Rule 58 explains that docket entry requirements are controlled by
With all deference to its author, neither does Calhoun. As discussed above, Calhoun found that a minute order fell short of Rule 58‘s separate document requirement. We then noted that this shortcoming was corroborated by the corresponding docket entry, which “does not show the filing and entry of a separate order.” 647 F.2d at 9. But Calhoun did not purport to be adding any requirements to
*
The Federal Rules of Civil Procedure abound with technical requirements, but they are, by and large, requirements that serve important purposes. The separate document requirement, for example, exists so that the parties will know exactly when judgment has been entered and they must begin preparing post-verdict motions or an appeal. Bankers Trust Co. v. Mallis, 435 U.S. 381, 385, 98 S.Ct. 1117, 1120, 55 L.Ed.2d 357 (1978) (per curiam). The Federal Rules, more importantly, are promulgated by the Supreme Court pursuant to the Rules Enabling Act; federal courts must treat them as they would statutes, and may not modify them by judicial construction. See Harris v. Nelson, 394 U.S. 286, 298, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 (1969).
Regretfully, I must conclude that the majority has failed to consider either of these principles. It has added two apparently pointless requirements to Rule 58: From now on, a judgment in this circuit will be without effect unless it is prepared and signed by the same deputy clerk, and entered in the docket with a notation that explicitly states it is a separate document. I cannot figure out why this should be; the new requirements are so counterintuitive that they will provide fertile soil for clerical errors, and thus generate more uncertainty than they resolve. More fundamentally, I cannot discern the source of our authority to make such textually unsupported modifications to the Federal Rules. I respectfully dissent.