Vincent M. DUDLEY, as Executor of the Estate of Robert J. Patton, and Rose Marie Patton, Plaintiffs-Appellees, v. PENN-AMERICA INSURANCE COMPANY, Defendant-Appellant.
Docket No. 01-9215.
United States Court of Appeals, Second Circuit.
Decided: Dec. 5, 2002.
Robert A. Crawford, Knoer & Crawford, Buffalo, NY, for Plaintiffs-Appellees.
Christopher F. Smith, Fixler & Associates, Elmsford, NY, for Defendant-Appellee.
Before: POOLER and SOTOMAYOR, Circuit Judges, and KAPLAN, District Judge.*
POOLER, Judge.
Plaintiffs-Appellees Vincent M. Dudley, et al. (“Dudley“) moved to dismiss as untimely the appeal of defendant-appellant Penn-America Insurance Co. (“Penn-America“). As is sometimes the case, the procedural background of this case in the district court somewhat complicates the simple and straightforward answer to Dudley‘s motion. Our path to the simple
BACKGROUND
On October 5, 2000, Dudley filed a lawsuit in federal court based on diversity jurisdiction. Dudley alleged that Penn-America failed to pay it pursuant to a New York State court judgment entered against Penn-America‘s insured, a bar called 24K Solid Gold, Inc. In the underlying state court lawsuit, Dudley sued 24K Solid Gold, which defaulted, and the bar‘s insurer, Penn-America, improperly disclaimed liability. As a result, Dudley alleged that Penn-America was “liable for payment of the judgment in the amount of $187,505.01, plus the appropriate statutory interest calculated from August 10, 2000.” In the complaint‘s request for relief, plaintiff again asked the court to award $187,505.01 plus accrued interest and costs.
Penn-America answered the federal complaint and defended the lawsuit. On December 12, 2000, Dudley moved for summary judgment. In the Notice of Motion for Summary Judgment, plaintiff asked the court to find, among other things, that Penn-America was liable for payment of the underlying state court judgment and interest accrued on that judgment from August 10, 2000. In a written decision and order, the district court granted plaintiff‘s motion and held that “plaintiffs are entitled to summary
In a written decision dated September 26, 2001, the district court granted Dudley‘s motion in its entirety. It considered the motion as one filed pursuant to
The clerk entered the order to amend the judgment on September 26, 2001 (the “Amended Judgment“) but never entered a separate amended judgment. Penn-America then filed a notice of appeal on October 12, 2001, from the district court‘s August 24, 2001, decision and order, the Original Judgment, and the Amended Judgment. Penn-America subsequently posted a supersedeas bond in the district court. On October 19, 2001, Penn-America filed an amended notice of appeal to include the district court‘s order awarding Dudley $150 in costs.
By a notice of motion filed on December 26, 2001, Dudley moved in this court to dismiss Penn-America‘s appeal as untimely because defendant filed its notice of appeal in district court more than 30 days after entry of the district court‘s Original Judgment. Penn-America opposed the motion, which we considered on submission.
DISCUSSION
Dudley contends that we lack jurisdiction to hear Penn-America‘s appeal because Penn-America filed its notice of appeal more than 30 days after the entry of the Original Judgment and “[d]efendant‘s time for filing a notice of appeal was not extended pursuant to
Penn-America responds that the district court erred in characterizing the Amended Judgment as having made a clerical correction under
We conclude that the plain language of the
There is no dispute that Dudley filed its motion within 10 business days of the entry of the Original Judgment. Dudley did not indicate under what Rule of Civil Procedure it moved, but the district court construed it as a
We hold that the district court correctly construed Dudley‘s motion as one made pursuant to
We note that it makes no practical difference in this case whether the district court construed Dudley‘s motion under
Finally, we must reconcile the plain and clear language of
In Cody, Inc. v. Town of Woodbury, 179 F.3d 52, 55-56 (2d Cir. 1999) (per curiam), we simply held that a district court could not issue a second, identical judgment for the purpose of restarting a party‘s time for
CONCLUSION
For the forgoing reasons, we deny Dudley‘s motion to dismiss as untimely the appeal of Penn-America Insurance Co.
SOTOMAYOR, Circuit Judge, concurring in the judgment.
The majority today undertakes to decide an important issue of appellate procedure which, in my opinion, is neither appropriate nor necessary to decide. Having undertaken that task, moreover, they have, in my view, decided the question incorrectly. Therefore, although I agree that the instant appeal is timely and that the majority has correctly denied the motion to dismiss, I concur only in the judgment.
The important issue improvidently decided today by the majority is that a motion under
The reason that the majority‘s step is neither appropriate nor necessary is that the original order entered on August 24, 2001 (the “August order“)—which stated only that “Penn-America‘s failure to comply with the provisions of New York State Insurance Law Section 3420(d) constitutes waiver of the Liquor Liability Exclusion and plaintiffs are entitled to summary judgment“—neither constituted a final judgment for purposes of appellate jurisdiction nor satisfied the separate-judgment rule of
I. Time to file a Notice of Appeal
The first requirement—that the court render a final judgment—is a necessary predicate for invoking our jurisdiction under
No such evidence of a final decision is present in the record in this case. There is nothing in the district court‘s summary judgment order which states that it is awarding money damages, and no mention of the amount beyond a reference in the factual recitation to the state-court judgment. Nor (even assuming the foregoing would suffice) is there anything in the record which indicates, as of the August order, that the court had expressed its intention that granting summary judgment to the plaintiffs would necessarily mean an award of money damages or any particular amount. Moreover, it is clear that the plaintiff-appellants (who are moving to dis
The fact that the district court, in its subsequent award of a money judgment, stated that “[i]t was the court‘s clear intention at the time it filed its Decision and Order granting plaintiffs summary judgment, that all of the relief sought by plaintiffs, including [declaratory relief, money damages, and prejudgment interest] be granted,” does not change this conclusion. While it is certainly true that we accord great deference to a district court‘s interpretation of its own orders, see Truskoski v. ESPN, Inc., 60 F.3d 74, 77 (2d Cir. 1995), that deference does not permit the district court, post hoc, to add provisions to an order that simply were not there originally. See County of Suffolk v. Alcorn, 266 F.3d 131, 141 (2d Cir. 2001).
Nor do I understand the district court to be interpreting its prior order; the more plausible reading of the above-quoted language from the September order is that the court intended to award money damages in its August order (but, by implication, did not). Rendition of judgment, however, is not accomplished merely by the district judge‘s unstated intentions. A court renders judgment by pronouncing that intention or otherwise making it evident in the record. See Bankers Trust, 435 U.S. at 387 (finding a final decision where the district court “clearly evidenced its intent“); The Washington, 16 F.2d 206, 208 (2d Cir. 1926) (“‘Rendition’ of judgment means the ‘annunciation or declaring of the decision of the court’ . . .“). Whatever the district court intended with respect to money damages, it not only failed to make that intent “clear,” it gave no indication of that intent whatsoever. Accordingly, as the plaintiffs recognized at the time, the August order was not a final, appealable judgment.
Even if it were, the second requirement for beginning the time to file a notice of appeal was not satisfied.
By its terms, the rule requires that the judgment be laid out in a document that is “‘separate from any judicial memorandum or opinion.‘” Cooper, 83 F.3d at 34 (quoting Axel Johnson, Inc. v. Arthur Andersen & Co., 6 F.3d 78, 84 (2d Cir. 1993)). In addition, the rule in this circuit is that this document must be labeled a “judgment.” Id. Unquestionably, the August “judgment” filed in the district court satisfied both of these requirements.
Consistent with this view, I believe the separate-document rule requires that one be able to discern the elements of a final, appealable judgment from the face of the separate document (labeled “Judgment“), without reference to any court papers or pleadings. As indicated earlier, to satisfy this requirement, a judgment therefore must indicate the disposition of the plaintiff‘s claims for relief (including, in the appropriate case, a statement that the plaintiff shall take nothing). Cf. Kidd v. District of Columbia, 206 F.3d 35, 37 (D.C. Cir. 2000) (
In fact, there is an open question as to whether this requirement has ever been satisfied in this case. The district court, in response to the plaintiffs’ motion for a money judgment, issued an order explaining in some detail its previous order and its decision with respect to prejudgment interest. The order concluded by directing the clerk to amend the judgment to reflect the total amount due the plaintiffs from the defendant. However, there has yet to be any separate document entered on the court docket which indicates this relief. It is my view, therefore, that the time for filing a notice of appeal may still not have begun to run. Because it is clear from the record, however, that as of the September order the requirements for a final, appealable order had been met, and because the parties are free to waive the separate-document requirement, see Bankers Trust, 435 U.S. at 387-88, we are not deprived of jurisdiction to hear this case. See Selletti, 173 F.3d at 109-10.
II. The Scope of Rule 60(a)
The majority appears to assume that, because the August order granting plaintiffs’ motion for summary judgment indicates that the plaintiffs were seeking money damages in the amount of the underlying state-court judgment, it is reasonable to infer from the district court‘s grant of summary judgment that this necessarily entailed a grant of money damages in that amount. As stated above, I disagree with that conclusion. However, even were I to accept that assumption, along with the further assumption that I am incorrect about the separate-document
A motion to correct a clerical error under
An award of prejudgment interest cannot be in any sense a “ministerial” act; the award must be rendered by the court. This is so because it entails a decision on several factual and legal questions. First among these is the question of what law governs. The answer to this question certainly cannot be gleaned from the record in this case as of the August order. It is found neither in that order (which refers only to the plaintiffs’ claim for “accrued interest“) nor in the complaint (which refers only to the “appropriate statutory interest“). In this case, the district court ultimately (in its September order) decided that New York law governed—but clearly New York law does not govern prejudgment interest in every case. In other words, this determination required the court to decide a legal question, and there is absolutely no indication in the record prior to its September order what the answer to that question would be.
Likewise, the decision that prejudgment interest should be awarded under New York law—presumably on the ground that the damages awarded represented a “sum awarded because of a breach of performance of a contract,”
Finally, and most importantly, the district court was required to determine the date from which interest would accrue, and on this point the record prior to the September order could have yielded several answers. The complaint asks for interest from August 10, 2000, which was the date up to which interest on the underlying tort
I assume that the majority would grant that, if the district court had issued a final judgment in August awarding prejudgment interest from October 5, and then the plaintiffs filed a motion asking that the interest be awarded from August 30, that motion would not be a “clerical” correction under
The point here is not to question the merits of the district court‘s decisions regarding prejudgment interest, but rather to point out that (1) they were decisions; (2) the amount of prejudgment interest depended upon those decisions; and (3) these decisions were not remotely evident on the record as it existed prior to September. That these decisions may have been relatively easy (although, as indicated, that is by no means clear), or even uncontested, does not mean that they were ministerial or that they had been made as of the August order.
The majority‘s distinguishing of our decision in Paddington Partners is not convincing. We held in that case that, even though the cross-plaintiff had included a claim for prejudgment interest in his cross-claim, the failure of the district court to award prejudgment interest in its award of damages on summary judgment was not a clerical error correctable under
The majority distinguishes Paddington Partners with the rather conclusory statement that “[h]ere, we have a situation where ‘the absence of an award of pre-decision interest in a judgment . . . failed to reflect the actual intention of the court’ . . . .” Ante, at 665-66. The majority bases this conclusion, first, on the alleged presence of “Dudley‘s consistent, detailed re
Regardless of the merits of the foregoing arguments, however, Paddington Partners is clear, and indistinguishable, on the failure of the district court to specify in its August order the date from which prejudgment interest would run. In Paddington, the district court likewise failed to specify this crucial date, and we likewise noted there that the date was far from clear, because it was uncertain when the underlying cause of action had accrued. 34 F.3d at 1140-41. We ultimately concluded that “the absence of an award of pre-decision interest in the original Judgments was not a clerical error within the terms of Rule 60(a), because it could not be corrected without a finding of fact regarding the dates from which such interest should run.” Id. at 1141. This statement is fully applicable to the district court‘s August order here. Consequently, the plaintiffs’ motion for a money judgment, at least insofar as it sought an award of prejudgment interest, sought to alter the substantive rights of the parties as they existed as of the August order and therefore could not have been a motion under
III. Fed.R.Civ.P. 60(a) and Fed. R.App. P. 4(a)(4)
Although, as already explained, I would not have reached the question of the tolling effect of a
Before turning to the analysis of the language and history of Rule 4, however, I pause briefly to address the effect of our statement in Hodge v. Hodge, 269 F.3d 155 (2d Cir. 2001), that “this Court . . . has held . . . that a motion under Rule 60(a) does not start anew the time for filing a notice of appeal.” Id. at 158. I fully agree with the majority that this statement was a mischaracterization of our holdings in Cody, Inc. v. Town of Woodbury, 179 F.3d 52, 55-56 (2d Cir. 1999), and Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir. 1996), both of which dealt with the effect of court-initiated clerical changes to judgments rather than changes made in response to a motion.3 I further agree that
Beginning with the language of Rule 4, which the majority apparently deems dispositively “clear and plain,” see ante at 666, I begin with the fact that the list of tolling motions refers not simply to a “motion under Rule 60” but rather to a “motion for relief under Rule 60.”
First, it is far from clear to me that attributing a purely descriptive function to the phrase—i.e., bereft of any operative effect—is consonant with the canon of construction previously cited. Put another way, the majority‘s apparent reading of subdivision (vi) as reaching any motion under Rule 60 would be achieved just as effectively by eliminating the phrase “for relief” completely. This construction renders those words superfluous and we “should hesitate so to treat” them. Ratzlaf v. United States, 510 U.S. 135, 140, 114 S. Ct. 655, 126 L. Ed. 2d 615 (1994).
Second, comparison with the other provisions of Rule 4(a)(4)(A) strongly indicates that the phrase is intended to be limiting. Like Rule 60, which encompasses two distinct types of motion, Rules 50(b), 52(b), 54, and 59 each also refer to at least two types of motion,4 and the references to each of these rules under Rule 4(a)(4)(A) include limiting phrases similar to the one in Rule 60. For example, Rule 4(a)(4)(A)(iii) does not reach all motions under Rule 54, only those “for attorney‘s fees.”5 Sound principles of statutory construction dictate that Rule 60 should be read in a like manner.
The next question, therefore, is whether a motion under Rule 60(a) is a motion “for relief,” and I believe the answer is clearly that it is not. Although the heading of Rule 60 is “Relief From Judgment or Order,” the text of the rule uses a form of the
Moreover, the granting of a motion under Rule 60(a), as opposed to 60(b), cannot be said to be “relieving” a party of anything. The heart of the distinction between an error that is correctable under Rule 60(a) and one that is not is that a correction under Rule 60(a) cannot alter the substantive rights of the parties, but rather may only correct the record to reflect the adjudication that was actually made. See Frigitemp, 781 F.2d at 327 (correction under Rule 60(a) available where “the judgment simply has not accurately reflected the way in which the rights and obligations of the parties have in fact been adjudicated“); see also United States v. Kellogg (In re W. Tex. Mktg. Corp.), 12 F.3d 497, 504 (5th Cir. 1994) (“[T]he relevant test for the applicability of Rule 60(a) is whether the change affects substantive rights of the parties and is therefore beyond the scope of Rule 60(a) or is instead a clerical error, a copying or computational mistake, which is correctable under the Rule.“); 12 James W. Moore, Moore‘s Federal Practice, § 60.02[1] (3d ed. 2002) (“Rule 60(a) may not be used to open up a judgment for the purpose of correcting substantive errors, or for the purpose of making rulings that should have been but that were not actually made.“). A successful movant under Rule 60(a), therefore, has not been “relieved” of any of the obligations imposed on him or her by the actual adjudication of the court; the grant of such a motion is merely a correction of the record to reflect that adjudication.
To be sure, the fact that the drafters of the 1993 Amendments to Rule 4 chose not to refer to a “motion for relief under Rule 60(b)” prevents this from being an absolutely clear case. As noted earlier, however, the references in Appellate Rule 4 to Rules 54 and 59 likewise are not restricted by inclusion of a subdivision, yet it is beyond dispute that they are not intended to cover all motions under those rules.
Any lingering doubt on the point is, in my view, erased by an examination of the history of Rule 4 and the policy considerations underlying it. Prior to 1993, Rule 4(a)(4)(A) did not include motions under Rule 60 in its list of motions that served to reset the running of the time for filing notice of appeal; just as they are today, however, motions to alter or amend a judgment under Rule 59(e) were included. Because of the similarities between motions under Rule 59(e) and Rule 60(b)—i.e., both motions seek a substantive change in the judgment—a difficulty arose in determining whether substantive attacks on a judgment were motions under Rule 59(e), which reset the appeals clock, or motions under Rule 60(b), which did not. Most circuits, including this one, resolved this difficulty by adopting a bright-line rule: Any substantive attack on a judgment that was filed within ten days of entry would be treated as a Rule 59(e) motion for purposes of Rule 4. See Rados v. Celotex Corp., 809 F.2d 170, 171 (2d Cir. 1986) (“Since the motion was served within ten days of the judgment and placed the correctness of the judgment in question, it was the functional equivalent of a motion to amend under Fed.R.Civ.P. 59(e), and should be treated as if it were a 59(e) motion for purposes of determining appellate jurisdiction.“); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40 (2d Cir. 1982)
When Rule 4(a)(4)(A)(vi), adding “motions for relief under Rule 60” to the list of tolling motions, was adopted in 1993, the Advisory Committee specifically stated that the amendment “comports with the practice in several circuits of treating all motions to alter or amend judgments that are made within 10 days after entry of judgment as Rule 59(e) motions for purposes of Rule 4(a)(4).” The committee cited to, among other cases, Rados. There is absolutely no indication that the committee intended to extend the list of tolling motions to include ones for nonsubstantive or clerical corrections under Rule 60(a), which had never theretofore had such effect.
Moreover, the negative policy effects of such an extension counsel strongly against assuming that it was intended. First, as this circuit has held, a nonsubstantive correction to a judgment undertaken by the district court sua sponte does not serve to restart the appeal clock. See Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir. 1996). The rationale of such a rule is that appellate time limits serve a strong interest in finality and swift resolution of cases and should begin to run whenever the lower court has actually and finally disposed of the case. As the Supreme Court stated,
[T]he principle that litigation must at some definite point be brought to an end . . . is a principle reflected in the statutes which limit our appellate jurisdiction to those cases where review is sought within a prescribed period. Those statutes are not to be applied so as to permit a tolling of their time limitations because some event occurred in the lower court after judgment was rendered which is of no import to the matters to be dealt with on review.
FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 213, 73 S. Ct. 245, 97 L. Ed. 245 (1952). It is difficult to see how this principle applies with any less force when the nonsubstantive correction to a judgment is made pursuant to a motion rather than at the court‘s own initiative.
Second, it must be noted that Rule 60(a) allows corrections to be made not merely to judgments, but to “orders or other parts of the record” as well. The majority‘s holding—that all motions under Rule 60, if filed within ten days, serve to reset the appeals clock—necessarily therefore includes motions that are not even directed at the judgment on appeal. There is no principled way based purely on the language of Rule 4 to distinguish between such motions—the only possible distinction among various Rule 60 motions based on the text is, as discussed above, a distinction between those motions which are for “relief” and those which are not. I fear, therefore, that the majority‘s holding has significant potential for mischief in the hands of litigants who, for whatever reason, seek to delay appellate review by filing various Rule 60(a) motions to correct the record—motions which may not be frivolous but certainly do nothing to serve the interests of swift resolution of cases.
In sum, I believe the majority has unnecessarily and erroneously determined that a motion under Rule 60(a) serves to reset the time for filing a notice of appeal. Because, however, I believe that the time
Gregory GAYLE, Plaintiff-Appellant, v. P. GONYEA, T. Sheehan, Hearing Officer, F. Iby, Co, P. Duheme, Co, T. Rocque, Sgt., R.T. Dubray, D.S.S., P.J. Lacy, Supt., Glen S. Goord, Commissioner of NYS DOCS, D. Selsky, Director of Shu, New York State Department of Correctional Services, H. Fayette, Senior Counselor & T.J. Lucas, Defendants-Appellees.
Docket No. 01-0218.
United States Court of Appeals, Second Circuit.
Decided: Dec. 10, 2002.