*1 jurisdiсtion where to another explicit reference to transferred court’s the Oklahoma order, litigated Peppers’ the text counterclaims were 42(b) in its bifurcation Rule November 25 completion. Michigan and its court was order of its transfer court in- adjudicate any sanctions clearly fully competent establish letter entire case. The Peppers’ counter- arising to transfer out of the tended issues recognized subsequently as fact that the claim. We do not read Cooter & Gell is insuffi- its action consequences impose authorizing a district court to Rule 60(a). Allied Ma- Rule arising cient to invoke conduct out of a 11 sanctions for terials, F.2d at over, jurisdiction when case which it lacks jurisdiction clearly is vested anoth-
C.
er court.14
the effect
must address
finally
We
judgment
The district court’s June
decision in
recent
Supreme
Court’s
its sanction award are REVERSED
—Corp.,
v. Hartmarx
Cooter & Gell
REMANDED with instructions to VA-
—,
Gell, Supreme Court was faced with plaintiff’s volun question whether pursuant of his actiоn
tary dismissal 41(a)(1) deprived the district
Fed.R.Civ.P.
impose Rule 11
jurisdiction to
court of
Pinion,
PINION, Mrs.
Mr. Jesse
Jesse
Stating that “a court must have
sanctions.
Plaintiffs-Appellees,
there has
authority to consider whether
regardless
a violation
[Rule 11]
Daffron, Shirley
Maurice
underlying actionf,]”
dismissal of the
Plaintiffs,
Daffron,
declined to hold that a
Court
41(a)(1)
terminated the
Rule
dismissal
CHEMICAL, U.S.A.,
DOW
authority
impose
Id.
court’s
sanctions.
Defendant-Appellant.
reasoned that
We do not Cooter controlling upon the instant case.
Gell hold-
The essence of the Court’s
ing in & is that where Cooter Gell committed, the district violation is
ethical jurisdiction punish that violation
court’s voluntary extinguished by dis-
cannot be Here, Peppers did not seek to
missal. or otherwise di-
dismiss their counterclaim jurisdiction court of
vest the Oklahoma Rather, the entire action was
over it. —Corp., course, & Gell v. Hartmarx case. See Cooter court retains the inher 14. Of 2447, 2457, U.S. —, L.Ed.2d 359 authority sanction unethi ent under Rule 11 to it, practiced if the court (1990). cal conduct before even jurisdiction to rule on the merits of lacks *2 Cockrill, Deakins, Ogletree, Donald H. Stewart, Atlanta, Ga., Nash, for Smoak & defendant-appellant. Palmour, Connelly, &
L. Branch S. Cook Ga., Cook, Summerville, Bobby Lee plaintiffs-appellees. JOHNSON, FAY and Circuit
Before *, Judges, PECK Senior Circuit Judge.
* Peck, tion. John W. Senior Circuit Honorаble Circuit, sitting by designa- Judge the Sixth appeal is
FAY, notice of nevertheless rehabilitat- Judge: Circuit application ed jurisdictional close presents case This equitable “unique circumstances” Court’s application involving potential question *3 rigid filing requirements exception to circumstances” so-called of the 6(b) appellate and 4. We find of Rule doctrine, exception to judicially created simply that Dow’s admitted inadvertence in filing just- mandatory that sometimes rules 6(b) failing engender to read Rule cannot over un- jurisdiction exercise ifies our of of the kind reasonable reliance contem- Dow appeals. Defendant-appellant timely cir- plated Court’s narrow (“Dow”) appeals the dis- U.S.A. Chemical light especially cumstances” post-trial mo- denial several trict court’s of mandatory jurisdictional and nature challenging judgment entered of the tions final Mrs. plaintiffs-appellees filing Mr. and rules at issue. therefore We favor Pinions”). (“the post- Dow’s appeal untimely. Pinion Jesse must DISMISS Dow’s motions, however, timely were not trial time for filed, not toll the and thus did Background. I. Procedural under Fed.R. apрeal notice of filing its 29, January 1990, following jury On 4(a)(4). appel- Normally, because App.P. Pinions, in favor of the the district verdict mandatory filing late Rule 4’s deadlines judgment against entered a final failure to com- jurisdictional, party’s and million, in the amount two four Dow ability to hear ply them is fatal to our dollars, fifty plus and hundred thousand appeal. later, and costs.1 interest Two however, Dow, re- claims detrimental order, in district court entered a consent on two district court consent orders liance Dow, response request by granting to a which, language of spite plain of the thirty-day parties extension to the to file 6(b) prohibiting expressly Fed.R.Civ.P. any post-trial motions.2 The court entered action, enlarged the time for 23, February another consent order on 50(b) post-trial motions under Fed.R.Civ.P. 1990, extending post- deadline for extension, Without court’s and 59. 8, The Pin- trial motions March 1990. timely post-trial could Dow still have filed expressly exten- ions consented to both Be- appeal. and a notice of motions 8, compliance March with the sions. On complied fully Dow with the extend- cause deadline, Dow filed a motion court’s court, and set ed deadlines notwithstanding un- judgment the verdict eventually the court ruled on because 50(b) or, alternatively, for der Fed.R.Civ.P. motions, Dow post-trial merits of Dow’s trial under 59. The a new Fed.R.Civ.P. “unique circum- argues these are dat- court denied Dow’s motion in an order assuming jurisdic- that justify stances” our 5,May subsequently filed ed Dow
tion of this
district court
its notice of
with the
propriety of the
first consider the
We
5,May
on
of the
dead-
district court’s extension
50(b)
motions
Rules
and
lines for
under
II. Discussion.
59(a). We
the court was
conclude
initially raised
Although
neither
clearly
authority
jurisdiction
without
issue,
obligated
are of
so,
we
course
post-trial mo-
rendering
do
thus
Dow’s
jurisdiction
sponte.
our
sua
appeal untimely.
and notice
We
examine
tions
Securities,
untimely filed
then consider whether Dow’s
Finn
v. Prudential-Bache
requested
jury
due to
had
the Pinions four hun-
brief that the "extensions were
1. The
awarded
fifty
compensatory
and
dred
damages,
thousand dollars
counsel as well
the trial schedules Dow’strial
punitive
and two
dollars in
million
provide
sufficient time to receive
as to
damages.
transcripts.
inad-
trial
Dow’s counsel
review
6(b) prohibition
vertently
overlooked the
6(b) expressly prohibits district
2. Fеd.R.Civ.P.
intentionally
to enter
ask the trial court
did not
taking any
"extend[ing]
from
the time for
courts
Appellant at
an unauthorized order.” Brief of
52(b)
under
and 59. Notwith-
action"
standing
Rules
-X-, n. 3.
Rule,
explains
initial
this
in its
Dow
Co.,
312, 315,
2405,
ger
cert.
(11th Cir.1987),
487 U.S.
108 S.Ct.
Inc.,
581,
F.2d
2408,
(1988).
917,
274, 102
filing rules
Exception.
Circumstances”
the mer-
court decided
fact that
trial
untimely new
of an
[or JNOV]
acknowledges that
it is “clear ...
Dow
We
F.2d at 617.
motion.”
not have the author-
that the trial court did
jurisdictional,
repeatedly
stressed
requested by
ity
the extensions
the Rule
non-discretionary character of
Appellant at -ix-. Dow
Dow.” Brief of
filing deadlines
regarding the
admonition
however,
6(b)’s prohibi-
argues,
that Rule
v.
Wright
motions. See
post-trial
for such
against
of time for
tion
extensions
Inc.,
Research,
tempered by eq-
post-trial motions must be
Preferred
curiam) (ten day period
Cir.1990) (per
(11th
Specifically,
considerations.
Dow
uitable
jurisdictional
“is
filing Rule 59
upon
trio of
Court cases
relies
court”);
extended
and cannot
early
developed
decided
1960’s
Inc.,
R.R.,
v.
Pate
Seaboard
circumstances”
narrow
Cir.1987) (ten
(11th
day period,
strict,
“for
jurisdictional requirements of
to the
Hankin,
rules. jurisdictional
trial motions
serving new
Wolfsohn
L.Ed.2d
in the discretion
extended
and cannot be
INS,
*5
Thompson v.
(1964)
curiam);
Harris,
(per
375
v.
court”);
625
Gribble
397,
384,
11
404
84 S.Ct.
L.Ed.2d
U.S.
1980) (Fed-
1173,
(5th
A
Cir. Unit
1174
Lines,
(1964)
curiam);
Harris Truck
(per
Procedure establish
Rules of Civil
eral
Packers, Inc.,
Cherry
Meat
Inc.
371 U.S.
filing Rule
10-day delay periods for
strict
215,
283,
(1962) (per
L.Ed.2d 261
jurisdic-
motions
and Rule 59
curiam).
consider the
more
We
in
extended
the discre-
and cannot be
tional
fully below.
court).5
of the district
tion
that,
undisputed
in the
it is
In this
Origins.
1.
6(b),
language
express
of Rule
face of the
entry
Essentially,
of the two consent
cir
the district court’s
under the
doctrine,
enlarge the time with-
purporting to
cumstances”
orders
whjch
post-trial
file its
mo-
Dow could
[cjourts
permit
to main-
will
beyond the court’s au-
clearly
tions was
untimely appeal
tain an otherwise
alternative
thority. Consequently, Dow’s
appel-
the
which
trial,
thirty-
for JNOV or new
filed
motions
good
reasonably and in
faith relied
lant
entry
judg-
of
eight. days after the court’s
indicated to the
upon
action that
ment,
timely.
Unless there is
were
right
that his assertion of his
for an
Dow’s notice
some basis
long
so
as the
appeal
would be
ineffective,
untimely
expi-
since its
appeal
prior
of
was
to the
judicial action occurred
Fed.R.App.P.
period
not toll
the official time
post-trial motions did
ration of
given
appellant could have
time-
filing requirement.
thirty-day
4’s
hearing
denying
power
to alter
stay
the
"confined the
of a district
had held a
before
period
the time
stated
merits.
or amend a final order to
state's motion on the
271,
52(b) and
Id. at
98 S.Ct. at
in Rules
59.”
Though
to file a
no-
the state’s failure
564.
request
appeal
an exten-
tice of
and its failure
interpretation
juris-
comparably
A
strict
obviously
appeal
re-
sion of time in which
requirements established in the Feder-
actions,
dictional
district court’s
flected reliance on the
56,
Griggs,
459 U.S.
al Rules was reiterated
motion was
the Court noted that
the state’s
(court
appeals
jurisdic-
had no
1529
prerequisites,
of time to amend a
tional
runs counter
to
extension
granting an
new trial mo-
Browder and
spirit
insufficient
of” decisions like
timely filed but
is,
result.
this
Griggs
empha
can achieve
decisions that
tion
have
—that
interpretations
sized strict
of the Federal
Butler,
F.2d at 617.
804
jurisdictional requirements. Kraus,
Rules’
however,
also went
panel in
Indeed,
Scalia,
899 F.2d
Justice
stress the narrowness
way
its
to
out of
dissenting
joined by
in a recent
and
"30-day
holding.
reiterated that the
its
It
Rehnquist, along
Jus
Chief Justice
require-
filing appeals is
strict
period for
O’Connor,
Kennedy
appeared
tices
position
ment,”
and “adhere[d]
reject
excep
for new trial does
untimely filed motion
outright:
“Petitioner asserts
tion”
Id.
appeal.”
toll
Lines, Thompson,
Truck
&
[Harris
Wolf
Nevertheless,
felt constrained to
the court
equitable
sohn ]
establish an
doctrine that
to dismiss:
deny appellees’ motion
permits
sometimes
the late
of notices
the dis-
no doubt that
While there
cases, however,
appeal.
Our later
effec
entering its order of
erred in
trict court
tively repudiate the Harris Truck Lines
26,
extending
time in
1986
Coral’s
March
approach, affirming
timely filing
trial,
for new
we
to file its motion
which
‘mandatory
of appeal
of a notice
deny appel-
no
alternative but
”
Lack,
v.
Houston
jurisdictional.’
487
appeal.
dismiss
lee’s
282,
(Scalia, J.,
108
2388
S.Ct. at
for new trial filed
purported motion
dissenting).
surprisingly,
Not
as the hesi
14
not a motion
on March
Coral
application
exception by
our
tant
trial,
had
au-
the district court
no
new
own Circuit Butler above
suggests,
thority
time for
extend the
vitality
circumstances” ex
file a
Coral did not
applied by
Notwithstanding
ception
ultimately
these
—even
reviewing
questioned
Rules of Civil
court —has been
of the Federal
breaches
Va
required by
opinions
Su-
various circuits.
Procedure ... we
number of
rhol,
1562; see,
Kraus,
e.g.,
ap-
precedent
to allow the
preme Court
909
1362-63;
Parke-Chapley
“unique circumstances”
peal
under the
F.2d at
899
Cherrington,
distinguish
907,
this
v.
cannot
Constr. Co.
doctrine. We
865 F.2d
Hankin,
Evans,
v.
Cir.1989);
v.
(7th
from
Smith
case
n.
Wolfsohn
203,
699,
(1964).
Cir.1988);
file Rule
courts
to
Other
seem have
more
however,
Circuit,
The Seventh
at 1072.
findings of “unique
lenient in their
citing
Kennedy’s recent formulation
Justice
Jones,
Fairley
stances.”
dismissed the
of the doctrine Osterneck
litigant,
Fairley,
pro
sought
a
se
appeal:
within
ten
his
extension
the
for
order,
entry
a minute
how-
The mere
This
motion for a new trial.
extension was
repre-
ever,
not an act of affirmative
granted by
magistrate
improperly
contem-
by judicial
officer as
sentation
filed his
within
judge,
Fairley
and
plated by Osterneck.
Fifth
extended deadline. The
Circuit
strict construction
Osterneck’s
“indistinguishable
the case
from
found
doctrine
oc-
‘unique circumstances’
Fairley, 824 F.2d
443. Al-
Wolfsohn.”
harsh result when
casionally produce apply
though explicitly hesitant
to
grant-
extension has been
an erroneous
exception in
light
circumstances”
scenario,
emphasize
this
we
ed. To avoid
emphasis
on “strict
Court’s
cannot
exten-
that district courts
deadlines,”
compliance
59(e)
context.
of time in a
sions
has
stressed that
not been over-
Wolfsohn
ruled,
Id.
that under that
“the
re-
Fairley,
pro
litigant,
se
like
liance of
recog-
has
Similarly, the Third Circuit
magistrate’s
of time consti-
extension
exists,
being
as
exception, if it
nized the
justifying
tutes
our
very narrow:
jurisdiction.”
at 442.
exercise of
Id.
as
doubt
to whether the
We have some
exception is still
‘unique circumstances’
Fairley
might
While
above
be distin-
strict, jurisdictional con-
given the
viable
guished,
pro
litigant,
it
se
since
involved
59(e)
applied
recently
to
struction
adopted
to
appears
our
Circuit
have
own
Recent
requirement.
Su-
timeliness
similarly lenient formulation of
strictly con-
preme Court decisions have
exception in
circumstances”
Willis
procedure
pre-
the rules of
strued
and Third
Butler. Unlike the Seventh
Cir-
time limits.
scribed
apparent
cuits’
focus on
state-
affirmative
implying
ments of the trial
court—
signing off on an exten-
has
lower court’s mere
as the
tend-
Much
period
request
ten-day
and time
sion
procedural
ed
construe
rules
to
reliance,
has
not sufficient
induce reasonable
strictly, this court
nar-
requirements
applied
any
—our
stated
sparingly
see Green
Circuit
rowly construed and
enough if it
exception
“judicial action” can be
indi-
‘unique
circumstances’
cated
that his assertion of
all events we
requirements____ At
time
“so
application
right
would be
find no basis
prior
long
action occurred
this
‘unique circumstances’
period
apply
‘unique
expiration
of the official
decline to
case: we
given
some
such that the
could
doctrine absent
ex-
circumstances’
timely notice had he not been lulled into
statement
the dis-
press, affirmative
(quot-
at 617
timely.
inactivity.”
804 F.2d
motion is
No
court that a
trict
606)
ing Willis,
(emphasis
add-
can be found
this
such statement
ed).8
record.
note, however,
panel
declining
apply
is not the last
that Butler
We
interestingly
"unique
never
cited Buder.
concerning
once
cir-
Osterneck
in our Circuit
word
earlier,
panel
cited a Seventh Circuit case
it
instead
exception. As mentioned
cumstances”
doctrine,
reasoning:
opinion
panel
in Osterneck v.
its formulation
Circuit’s
our
*10
Industries,
Inc.,
this
district court or
court
"At no time
three
¶ 204.12[2],
(noting
at 4-89
that
and uncontroversial:
straightforward
inappli
rule has been held
circumstances”
clearly without
1)
court was
The district
appellant’s reliance on an erro
cable where
extension
authority to
by
court was not
neous action
the district
must
Dow,
and Dow’s
Miller,
reasonable); Wright
4A
&
Federal
untimely unless
considered
therefore
1168, at 506
and Procedure
Practice
§
of the
by
application
rehabilitated
(1987)(reliance on erroneous action of dis
exception.
“unique circumstances”
justify
trict court must be reasonable
narrowly con-
2)
eroding and
Although
deciding
In
hearing
untimely appeal).
an
exists and has
strued,
exception still
therefore,
apply
whether
applied in our Circuit.
been
party
only
“look not
to whether
we will
3)
exception
to our
Applicability of
attorney actually relied on the district
scope.
or
оn its
facts turns
...,
to the rea
extension
but also
court’s
Thus,
point, we must consider
at this
party’s
of the
conduct
sonableness
more detail.
exception in a bit
scope of the
Kraus,
totality.”
“the
Preliminarily,
note that
we
ex
apply unique
power to
then,
juris-
purposes,
our
the crucial
For
impose
require
us a
does not
ception
question
Was it reason-
dictional
becomes:
is,
contrary, this
do so. On the
ment to
rely upon
the district
for Dow
able
most,
equitable doctrine which enables
an
improper extension of the time for
court’s
circum
consider all the relevant
us to
motions,
post-trial
spite
of the ex-
deciding
whether to exercise
stances
language
prohibiting
plicit
Kraus, 899 F.2d at
power that we have.”
granting such an exten-
district court from
Varhol,
1365;
1533 Lloyds London an extension.9 Underwriters at v. Ev- authority grant court’s of ans, apparent it be- way, more (10th Cir.1990) another the Put 896 F.2d 1257-58 filing error party’s the stems that comes (where improperly court enlarged district in negligence party’s the own much from notice in time for a of excess reading inquiring the simply or about not by limits jurisdictional imposed ap- the of on actual reliance as it does from rules, appellant pellate could not claim rea- court, the cir- by the district some action light in his “duty sonable reliance of “unique.”10 less become fаr cumstances appellate the familiarize himself with starkly admits In our Dow rules”; or “either knew should “inadvertently its counsel overlooked that have known” that district court had exceed- Appel prohibition.” the Rule Brief of maximum allowable extension under ed lants 2. the -ix- n. As Third Circuit Parke-Chapley, 4(a)(5)); App.Rule 865 quite recently a similar ease: ruled (noting part at 914 that due to F.2d unaware misreading or Here [counsel’s] (just reading “relative the of ease rules ness of computation principles the time procedure)” which counsel with should 6(a) to his set in Rule contributed forth consequences have determined of a FRCP file a notice of failure to 60(b) motion, “any counsel sim- reasonable unique circumstances doctrine ply could have been misled” trial not attorney’s to an never extended Hill, United v. statement); States court’s lim applicable time miscalculation the (7th Cir.1987) (“The F.2d 826 508 Su- its, here see reason do so and we no preme has not or even judge also that held hinted even if the trial shared assumption. incorrect neglect, a defendant’s own or that of that lawyer, jurisdictional Kraus, extends a time (emphasis F.2d at add- 1365-66 limit.”).11 sеe also Certain (footnote omitted); ed) fact, despite inquiry extend on district court could the deadline In a formalistic that focuses
9. only presence of affirmative the strictures of the Rules. or absence the the court insufficient. statements district issuing vacating a writ mandamus although example, we believe that For trial, improper trial court’s of a new "unique nar- doctrine should be circumstances" emphasized that there is "an Seventh Circuit construed, unwilling suggest, rowly we are rigid equitable exception time limitation Green, the find- like Seventh Circuit in law, knowing actually lawyer, when a not depend upon a ing will relies the affirmative misstatement rigid an "affirma- of what constitutes definition judge.” Bailey Sharp, 782 F.2d representation.” Where the court in Green tive suggested court, however, (7th Cir.1986). Bailey entry order can of minute exception, apply "it [was] refused to because representation never "an act of affirmative judge’s clear that it was not misstatement contemplated Oster- officer as misreading of the law led to but counsel’s neck," willing to we are not on time.” Id. his failure to file representa- requirement of "affirmative read the narrowly. possible to envision tion" so It dealing pro with 11. If we were the mistakes of entry of a minute or scenario in which the litigant, Fairley, Dugger, Derks v. se such as order could constitute affirmative consent representation, (11th Cir.1987), Inglese, F.2d response par- if entered in to a "unique justification applying ty’s specific request for assurances from exception would become at least more stances” compelling timely. its actions were "Affirmative court that representations,” pro litigants arguably se because words, con- must be other charged responsibility as much in fol- with circumstances, totality sidered in the That, however, lowing rules. is not party’s the reasonableness of a which includes represented before us. Dow was the situation Kraus, conduct. by competent and able counsel. Co., Kroger (Temp. F.2d 1268 occasion, In Reed v. Indeed, attorney on at least one Emer.Ct.App.1973), the considered a more day through actually research the discovered lawyer’s file a case failure to notice blatant judge trial had no au- after the event thority jurisdictional deadline. filing post-tri- grant an extension There, "unique seeking to invoke the circum yet faith to come al refused that his re knowledge. Although stances” counsel claimed forward with attorney clerk advice a district court liance on the oral could have filed motion within practice, unfamiliarity local pri- proper period, excused his read —or misread—a he 100-day of his belated articulating exception to that a and that his mean or case *12 we find that Dow did not rea- mandatory jurisdic- Because light of the sonably rely on the district court’s consent case, filing rules in this nature of tional orders, and thus does not fall within Supreme deci- Court drift of recent and the “unique circumstances” we must strictness, rules’ it reiterating sions jurisdiction over this Al- decline on this record that appear not simply does that “Osterneck’s acknowledge though we present “unique circumstances” there ‘unique of the strict construction supposed to a justify applying what to occasionally produce doctrine stances’ equitable exception. narrowly construed harsh result when an erroneous extension a merely do not exist Equitable mechanisms Green, granted,” F.2d at has been oversight attorney or inad- to rehabilitate itself has indi- Court of Dow’s re- The reasonableness vertence. increasingly willing to toler- cated that it is of the district liance on the action comply ate “harsh” results failure it by the ease with which severely undercut prerequisites mandated jurisdictional' with 6(b). Simply scan- read Rule could have legislature through drafting provided have the Rule would ning Further, the Federal Rules.13 to hold oth- inconsistency between that there was plain, erwise in this case would render the court’s consent 6(b) text and mandatory language the Rule’s of Rule a nulli- ty.14 order.12 important. In the case at stand as valid. In The distinction is should nonetheless bar, strong although dismissing appeal, court stated its Dow did take "some action” with- require ten-day period, it "professional standards coun- in the the extension for which that belief with, clearly impermissible a or to make at least asked was under Rule to be familiar sel learn, 6(b), reasonably the rules of the effort and Dow should have known reasonable they practice____unfamiliarity courts in which this. The difference between Butler and our practice even constitute ‘ex- attempt with local case is the the Butler satisfy higher neglect,’ 6(b) let alone cusable accommodate Rules and 59. In other recognized words, [for timely standard filed but insufficient Rule 59 Reed, F.2d at 'unique perhaps circumstances’]." sufficient if the motion can become believe that the Reed court's ad- 1271-72. We subsequent actions of the district court indicate here; equal applies terms, with at least force monition problem; equitable that there is no minimum, charged attorneys should be at the good-faith attempt there has been a at nominal knowledge the Federal Rules of Civil with compliance, no notice of and the have Procedure. their mistake. Dow in our case cannot make glanced argument they once the same never distinguishable and in Butler is
12. Our decision
6(b)
Rule
would have had immediate notice
—it
contrary
result in this case.
does not mandate
enlargement
request
explicit
that its
for an
matter,
did not involve
the instant
Butler
Unlike
granted.
filing
have been
deadline could not
filing
simple
extension
the dis-
limit,
There,
ten-day
trict court.
Locke,
In U.S. v.
the Court observed that
motion,
timely
new trial
did
limitations,
file
deаdlines,
"[fjiling
like statutes of
request
along
accompanying
to file a
with an
arbitrarily
necessarily operate harshly and
containing grounds
supporting memorandum
just
respect
individuals who fall
on the other
granted
then
The district court
motion.
them,
concept
but
if the
of a
side of
appellant to file the
extension of time for the
an
supporting
content,
any
the deadline
deadline is
have
Appellee argued
that
memorandum.
84, 101,
enforced.” 471 U.S.
must be
ten-day period was
the motion filed within the
1785, 1796,
(1985).
L.Ed.2d 64
nothing more than a motion for an extension of
trial
and if this
time for new
Easterbrook,
Judge
concurring
Bailey
the district court had no
were the
1371,essentially suggests
Sharp,
782 F.2d at
authority
enlarge the time for
such a
prohibition
express
extension of time
Nevertheless,
6(b).
motion under Fed.R.Civ.P.
6(b)
argu-
always preclude
under Rule
should
evidently
accept such a character-
we
ization,
did not
erroneous dis-
ments of reasonable reliance on
appellant’s reliance in
for we found the
action;
trict court
[appellant]
that case to be reasonable “because
6(b)
extending
explicit
appeared to be а
Rule
vitiates
orders
filed a
which
Thus,
just
although
be-
time. The order cannot control
valid new trial motion.
it;
6(b) says
may rely
might
people
cause
motion for new trial
amended
they may
rely.
every effort to
technically untimely,
action
Unless
that some
the fact
‘special circumstance’
judgment
extend the time is a
distin-
was taken within 10
(em-
justifying
which event Rule
the extension—in
guishes
F.2d at 617
this case.”
letter,
added).
is a self-
is a dead
each violation
phasis
Circuit,
and Third
jurisdiction ran out
unlike the Seventh
Cir
court’s
The district
*13
cuits,
required
has never
an affirmative
powerless either
days, and it was
ten
after
oral or
statement from the district
time,
grant
written
or to
party more
give
to
either
assuring
court
that his or her
the
Absent
motion.
new trial on its own
adequate.
majority
The
*14
cases and
not
two
did
assure counsel
any judicial
point
could not
action or
timely
that the orders
filed.
were
delay
filing
statement that caused it to
Osterneck,
of its notice of
825
majority’s opinion
departure
The
is a
majority’s implied
F.2d
The
read
at 1529.
from the law of our
in one other
Circuit
in
ing of
fact sub silentio over
Ostemeck
significant way.
majority presumes
The
Volkswagen,
rules
both Butler
Coral
thаt,
involving
with the
of cases
Inc.,
(11th Cir.1986),
F.2d
pro
litigants
se
and cases where the district
Wolfsohn, supra, since both of these cases
emphatically
litigants,
assures the
li-
actions,
any
judicial
allowed
without
con
rely
tigants
upon judicial
who
actions will
statements,
temporaneous judicial
to con
prove
be unable to
the reasonableness of
unique circumstance.1
an
stitute a
Absent
their reliance. The majority reasons that
express
by the later
statement
courts over
parties
most
could have avoided the situa-
ruling
prior precedent,
we should at
place by
tion in the first
simply reading the
opinions
being
tempt to read the
consist
rules.2 While it is true that if Dow had
opinions
ent with each other. The two
are
properly read the
it
rules would not be in
recognize
judicial
that a
consistent we
present predicament,
the same is true
action,
order,
approval
such as the
of an
litigant
every
who seeks to invoke the
representa
can constitute an affirmative
unique
By pre-
circumstances doctrine.
tion
the court.
suming
that
actions of the
were
rules,
failing
unreasonable for
to read the
majority,
While the
in the formulation of
majority
presumption
has invoked a
test,
action,
acknowledges
judicial
its
significantly
application
which
narrows the
more,
without
is sufficient to invoke the
of the doctrine.
doctrine,
majority,
application
in the
test, places significant
in
stock
the dis-
majority
narrows the doctrine be-
trict
any “emphat-
court’s failure to make
cause it confuses the reasonableness of the
majority
ic” assurances. The
concludes
appellants
filing
in
the initial motion for an
assurances,
any
that absent
such
it be-
extension of time with the reasonableness
“apparent
party’s filing
comes
...
that the
appellants
relying upon
of the
the dis-
party’s
error stems as much from the
own
granting
trict court’s
this motion. While it
negligence.”
majority
holds that
is clear that
the motion for an exten-
inapplicable.
such a
the doctrine is
time, in
sion of
direct contravention of Fed.
Essentially
majority’s opinion
can
6(b),
be
negligent,
R.Civ.P.
it is less clear
fairly
holding
litigant
read as
that if the
relying
grant
on the district court’s
pro
11)
majority’s
not
se
note
and if
Circuit,
negligent.
{see
this motion was
Our
any “emphatic”
Inc.,
court does not make
suрra,
Butler v.
Volkswagen,
Coral
litigant
pre-
questions
assurances then the
will be
noted that the two
fact
sumed
separate
only
question
not to have established the exist-
and that
the second
illogical
panel opinion
emphatic.
party
It would be
to view the
district court is more
If a
is to
overruling
panels
judge signs
in Ostemeck as
Butler because
be held to the rules when the
an
Machado,
power,
why
party
lack that
see United States v.
order it
unclear
should be ex-
Moreover,
(11th Cir.1986).
upon
cused from the rules when the
relies
only
these cases were decided
eleven months
representation
an informal oral
from a
apart
panel
Newsome,
and two members of the Butler
sat
clerk. See Willis v.
is relevant to the
permit
circumstances doc-
Courts
appellant
will
to main-
Butler,
trine.
tain an
untimely
F.2d at 615 n. 5 &
otherwise
appeal in
unique circumstances in
617. The focus of the
which the appel-
lant reasonably
and in
faith
why
stances doctrine is on
relied
upon judicial action that indicаted to the
appeal,
failed to
file his
appellant that his
right
assertion of his
why
appellant thought
he or she
would
long
so
as the
underlying
could file the
motion. In But-
judicial action
prior
occurred
expi-
ler,
appellant’s
while we condemned the
ration of the
period
official time
requesting
actions
a motion
given
could have
time-
extension of time and we condemned the
ly notice had he not been lulled into
district court’s
we held
inactivity.
appellant’s
upon
reasonable the
reliance
Willis, 747 F.2d at
undisputed
606. It is
the district court’s actions.3 As we
held
(1)
action indicated that
appellant’s]
“if
motion had
[the
*15
appellant’s right
to
notice would be
[by
been dismissed
as it
court]
timely
(2)
judicial
action occurred
been,
should
appellant]
would
[the
appellant
when
timely
could still
file the
plenty
perfect
have had
ap-
of time to
notice.
disputed
What is
appel-
whether
peal.
Willis,
appellant
As
here was
“reasonably
good
lant
faith” relied
inactivity’
‘lulled
by
into
the action of the
upon
action.
I believe that
Butler,
district court.”
new stake, Pinions are in judgment
lion attacking unseemly position proper agreement. It is
consent equitable doctrine to bene-
manipulate this in contravention of the basic the Pinions
fit “he who
principle equity [or she] clean come with equity into must
comes Giants, Inc. York New Football hands.” Club, Football Angeles Chargers v. Los Cir.1961). (5th
Inc., 291 F.2d impli- about the
Finally, I concerned am majority’s holding.
cation hand, placed before
ease at ruled on the court
the district court and The ma- issuing an order.
that motion jurisdiction we lack be-
jority finds that rely it was unreasonable Dow
cause order this order. Whether not an
upon correct, upon binding still it is appellate until an the law of the case *16 be, It seems
court reviews order. least, very policy appellate bad
at the litigants rely upon not to
courts instruct Though not in- orders. I do
district court horribles, parade point
tend to out holding encourages
majority’s guess file need- district courts and
second par- appeals even when the
less notices of suspect do not that the district
ties
in error. jurisdiction, and I
I therefore would find proceed we to the merits.
believe should COLLEGE,
PALM BEACH ATLANTIC
INC., Plaintiff-Appellee,
Cross-Appellant, LTD., FUND, UNITED Stanmar
FIRST Renda, Corporation, Mario
Defendants-Appellants, Cross-Appellees.
No. 89-5421. Appeals,
United States Court
Eleventh Circuit.
April
notes
jur-
was
circumstances, a “court without
unique
supports
case law
the
that our Circuit’s
power, no mat-
is a
without
isdiction
judicial
the
by
notion that
action
district
exceptions
appealing the case for
ter how
court,
grant
may
as the
of a
Bailey, 782
(citing
F.2d
1378
may
at
be.”
to
the doctrine. Our
be sufficient
invoke
v. United
Managers’ Ass’n
Professional
in
well
Circuit’s case law is
founded
that
States,
(Easter-
(D.C.Cir.1985)
F.2d 740
761
specifically
Supreme
the
Court has
allowed
brook, J., concurring). Consequently, we
court,
judicial
by the district
without
action
on
power to hear this case
the
too lack the
any contemporaneous oral or written assur
merits.
ances,
to
a basis
to be sufficient
constitute
invoking
unique
the
circumstances doc
III. Conclusion.
Harkin,
v.
See Wolfsohn
trine.
376 U.S.
reasons,
foregoing
the
is
For the
203,
699, 11
(1964) (per
84
L.Ed.2d 636
S.Ct.
DISMISSED.
however,
curiam).
majority,
tempers
The
reading
its
of our case law in its footnote 8
JOHNSON,
Judge, dissenting:
Circuit
application
the
and in its
test
section
that
majority
The
has concluded
the
opinion.
ofC
is viable and
unique circumstances doctrine
8,
implies
In
majority
footnote
the
that
upon this
With this conclu-
binding
Court.
E.T.
Osterneck v.
Bar
language found in
sion, I,
course, agree.
majority,
The
Industries, Inc.,
1521,
wick
825 F.2d
however, has concluded that
this doctrine
(11th Cir.),
sub nom. Osterneck
aff'd
case at
With
apply
to the
bar.
169, 109
Whinney,
Ernst
&
S.Ct.
conclusion,
agree.
I
this
cannot
(1989), suggests
103 L.Ed.2d
thorough
majority
The
conducts
requirements
shift
the
of the doctrine.
of the
law
discussion
case
inter-
exhaustive
Osterneck
Circuit decision in
Eleventh
unique
preting the
circumstances doctrine.
judicial
affirmatively
no
officer
stated that
discussion,
majority
At the end of this
represented
that
assured
analysis
it
the test as an
of whether
frames
Osterneck,
timely.
rely upon
was “reasonable for Dow
adopted
Supreme
Court
sim
improper extension” of the
district court’s
language
of our
ilar
its affirmance
limits,
(emphasis deleted).
relevant
time
Osterneck, Court’s decision. However,