American Federation of Grain Millers, Local 24 v. Cargill Inc.
| Decision Date | 04 February 1994 |
| Docket Number | No. 93-1476,93-1476 |
| Citation | 15 F.3d 726 |
| Parties | 127 Lab.Cas. P 11,015, 28 Fed.R.Serv.3d 4 AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL 24, Plaintiff-Appellant, v. CARGILL INCORPORATED and Pillsbury Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Patrick J. O'Hara (argued), Cavanagh & O'Hara, Springfield, IL, for American Federation of Grain Millers, Local 24.
Alex V. Barbour (argued), David K. Haase, Jenner & Block, Chicago, IL, James R. Potter, Londrigan, Potter & Randle, Springfield, IL, for Cargill, Inc.
Carl R. Draper, Feldman & Wasser, Springfield, IL, Bradley W. Kampas (argued), Jackson, Lewis, Schnitzer & Krupman, San Francisco, CA, for Pillsbury Co.
Before WOOD, Jr., EASTERBROOK, and RIPPLE, Circuit Judges.
American Federation of Grain Millers, Local 24, ("Local 24") appeals from the district court's order dismissing their claim for lack of subject matter jurisdiction. Because we find that we do not have proper appellate jurisdiction, we cannot reach the merits of Local 24's arguments and therefore can only dismiss this appeal.
Local 24 represents the production employees of a factory located in Springfield, Illinois. Pillsbury owned the factory in the beginning of 1991, but sold the facility to Cargill in a deal consummated on June 10, 1991. Terms included a provision imposing certain hiring and payment obligations on both Pillsbury and Cargill, and these claims form the basis of the substantive issues presented in plaintiff's complaint.
On December 8, 1992, the district court issued an order dismissing plaintiff's complaint for lack of subject matter jurisdiction and denying the parties' cross motions for summary judgment. The order made no mention of costs. The court held that plaintiff's state law claim of misrepresentation relative to collective bargaining agreements with Pillsbury and Cargill constituted an unfair labor practice under Sec. 8(a)(5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(5), but that this claim is preempted by the exclusive remedies available under the NLRA. Kolentus v. Avco Corp., 798 F.2d 949, 961 (7th Cir.1986), cert. denied, 479 U.S. 1032, 107 S.Ct. 878, 93 L.Ed.2d 832 (1987). The next day, on December 9, 1992, the clerk of the court entered an order dismissing the case for lack of subject matter jurisdiction, granting judgment for the defendants, and awarding defendants their costs. Plaintiff did not appeal this order.
More than thirty days later, on January 12, 1993, Local 24 filed a "Motion to Strike [the December 9 judgment] or in the Alternative, Objection to Defendant's Bill of Costs." The district court granted plaintiff's motion by a January 22, 1993 order, dismissed the case without prejudice, struck the December 9, 1992 judgment for the defendant, and ordered that each party bear its own costs. Neither plaintiff nor the district court specified the rule or subdivision under which the December 9 judgment was altered, although the parties now concede that the court acted pursuant to Fed.R.Civ.P. 60. On February 22, 1993, Local 24 filed a timely notice of appeal from the January 22, 1993 order although it had prevailed on its motion.
Before addressing the substantive issues presented by this appeal, we must first ask whether we have appellate jurisdiction. On April 8, 1993, a motions panel of this court denied without opinion "Appellee Cargill's Motion to Stay Briefing Schedule, and Motion to Dismiss Appeal, or in the Alternative, To Limit Scope of Appeal." Contrary to plaintiff's position, we are free to reexamine jurisdictional issues, uninhibited by the law of the case doctrine or by 7th Cir.R. 40(f). Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir.1991). A motion panel's decision is merely tentative as it is often based on a scanty record, and is subject to review by the merits panel.
For this court to have jurisdiction under 28 U.S.C. Sec. 1291 (1988), Fed.R.App.P. 4(a)(1) requires appellant to file a notice of appeal within thirty days after entry of the judgment or order. Because plaintiff filed this appeal within thirty days of the January 22, 1993 order, we have jurisdiction to review any alleged errors in that order. We have a problem, though, because the only substantive issues presented by plaintiff's brief concern the district court's holding that it lacked subject matter jurisdiction over this dispute, a holding originally stated in the December 8, 1992 order. The January 22, 1993 order dismissing the case without prejudice only corrected a clerical error. When appealing from an order altering a previous judgment under Rule 60, an appellant cannot attack the original order, but is limited to assigning as error any problems in the Rule 60 decision itself. So while we do have jurisdiction to review the January 22, 1993 order, that jurisdiction does not allow us to review the substantive issues of the December 8, 1992 order unless the filing period was tolled or restarted because of the changes made under Fed.R.Civ.P. 60. 1
When plaintiff moved the court to strike the judgment and award of costs on January 12, 1993, plaintiff argued that the change was needed because of a "clerical error due to a misunderstanding of the Court's order." Plaintiff's own characterization suggests that plaintiff moved the district court under Fed.R.Civ.P. 60(a), which authorizes a court to correct clerical errors in judgments and orders. Such a motion does not restart or toll the allowable time period for a timely appeal. Local 1545, United Mine Workers of America v. Inland Steel Coal Co., 876 F.2d 1288, 1291-92 n. 4 (7th Cir.1989).
Plaintiff maintains, however, that its January 12, 1993 motion was based on Rule 60(b). In support of this argument, plaintiff points to the January 22, 1993 district court order granting its motion to strike because the clerk of the court "inadvertently" entered judgment for the defendant and awarded costs to the defendant, two orders not issued by the district court on December 8. Rule 60(b) permits a party to seek relief from judgment on the grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, and fraud. But a motion for relief from judgment under Rule 60(b) does not toll the time for appeal from, or affect the finality of the original judgment. Browder v. Director, Dept. of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978). A narrow exception to this rule allows a change in the judgment to restart the period in which a timely...
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