Dieser v. Continental Cas. Co.

Decision Date02 March 2006
Docket NumberNo. 05-2172.,05-2172.
PartiesWilliam DIESER, Appellee, v. CONTINENTAL CASUALTY COMPANY, doing business as CNA Insurance Company; CompuCom Systems, Inc., Appellants.
CourtU.S. Court of Appeals — Eighth Circuit

Christopher C. Swenson, argued, St. Louis, Missouri (Bryan D. LeMoine, on the brief), for appellant.

Phillip A. Tatlow, argued, St. Louis, Missouri, for appellee.

Before MURPHY, BOWMAN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Continental Casualty Company ("Continental") and CompuCom Systems, Inc. ("CompuCom") appeal the August 26, 2004, and March 22, 2005, orders of the district court.1 As discussed below, neither of these orders was a final, appealable order. Therefore, we dismiss the appeal for lack of jurisdiction.

Appellee William Dieser, a former employee of CompuCom, brought an action under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., against Continental and CompuCom to recover benefits under a short-term disability benefits plan funded by CompuCom and a long-term disability policy provided by Continental. On August 26, 2004, the district court issued a memorandum opinion and entered a separate order partially granting Dieser's motion for summary judgment and denying Continental and CompuCom's cross-motion for summary judgment ("August 2004 order"). The August 2004 order also awarded Dieser past-due short-term disability benefits in the amount of $1,730.76 from CompuCom; past-due long-term disability benefits in the amount of $82,788.00 from Continental; statutory penalties against CompuCom under 29 U.S.C. § 1132(c) in the amount of $18 per day for 441 days,2 totaling $7,938.00; and an unspecified amount of pre-judgment interest. Finally, in that order the district court set a bench trial to resolve the remaining issues of additional statutory penalties for failure to provide plan documents after May 14, 2002; the precise amount of pre-judgment interest; and attorney's fees and costs under 29 U.S.C. § 1132(g).

After an evidentiary hearing was held on November 5, 2004, and the parties filed post-trial briefs, the district court issued a second memorandum opinion and entered a separate order on March 22, 2005 ("March 2005 order"). In the March 2005 order, the district court awarded Dieser additional statutory penalties against CompuCom pursuant to § 1132(c) in the amount of $6,642.00, representing an award of $18 per day from May 26, 2002, until May 30, 2003; attorney's fees in the amount of $33,949.38; and costs in the amount of $150.00. In the March 2005 order, the district court also ordered that Dieser "shall show cause on or before March 27, 2005, if any, as to the precise dollar amount of pre-judgment interest that he is requesting by providing that total amount in addition to providing the mathematical computations upon which the total requested amount is based." Additionally, the district court provided that Continental and CompuCom could respond to Dieser's request for pre-judgment interest by April 3, 2005.

Accordingly, on March 25, 2005, Dieser filed a request for pre-judgment interest, explaining his position on how the interest should be determined, including setting forth the applicable statute governing pre-judgment interest, 28 U.S.C. § 1961; the applicable interest rate; various beginning and ending dates; and the specific calculations. On April 1, 2005, Continental and CompuCom filed a response to Dieser's request, disputing the applicable dates and arguing that Dieser's calculations and resulting numbers were flawed and that Dieser failed to respond appropriately to the district court's March 2005 order.

Continental and CompuCom filed a notice of appeal on April 21, 2005, thirty days after the March 2005 order. Continental and CompuCom appealed from the memorandum opinion and the order entered on August 26, 2004, and the memorandum opinion and the order entered on March 22, 2005. Continental and CompuCom's notice of appeal also indicated that the district court "has not yet ruled on Plaintiff/Appellee's motion for pre-judgment interest; however, Defendants/Appellants intend to include in their appeal any award of pre-judgment interest." The district court did not certify either order for appeal under 28 U.S.C. § 1292(b) or expressly direct entry of a final judgment as to fewer than all claims or parties under Fed. R.Civ.P. 54(b).

The district court then entered a third order on June 27, 2005 ("June 2005 order"), granting Dieser $104.86 in pre-judgment interest on past-due short-term disability benefits from CompuCom and $2,689.20 in pre-judgment interest on past-due long-term disability benefits from Continental. With the June 2005 order, all issues of liability and all amounts of monetary awards had been specified by the district court, and nothing was left for the district court to do but execute the judgment. See Borntrager v. Cent. States, Southeast & Southwest Areas Pension Fund, 425 F.3d 1087, 1091 (8th Cir.2005). Continental and CompuCom did not file another notice of appeal subsequent to the entry of this final, appealable order.

"[J]urisdiction issues will be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking, even if the parties concede the issue." Thomas v. Basham, 931 F.2d 521, 523 (8th Cir.1991). Generally, a party in a civil case must file a notice of appeal "within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a)(1)(A). The requirement of a timely notice of appeal is mandatory and jurisdictional. Arnold v. Wood, 238 F.3d 992, 995 (8th Cir.2001). Dieser argues that the August 2004 order was a final judgment, making Continental and CompuCom's notice of appeal untimely as to the August 2004 order but timely as to the March 2005 order. Therefore, Dieser contends that we have jurisdiction to review only the amount of additional statutory penalties and the amount of attorney's fees awarded in the March 2005 order. Continental and CompuCom contend that their appeal was timely as to the entire adjudication of the case by the district court because "there was not a final judgment from which an appeal could be taken until (at the earliest) March 22, 2005."

The notice of appeal filed on April 21, 2005, was premature because the August 2004 order and the March 2005 order were not final, appealable orders. See 28 U.S.C. § 1291 ("The courts of appeal. . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States."). A final decision within the meaning of § 1291 "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Borntrager, 425 F.3d at 1091 (quoting Cunningham v. Hamilton County, 527 U.S. 198, 204, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999)). "A judgment awarding damages but not deciding the amount of the damages or finding liability but not fixing the extent of the liability is not a final decision within the meaning of § 1291." Maristuen v. Nat'l States Ins. Co., 57 F.3d 673, 678 (8th Cir. 1995); see also Parke v. First Reliance Standard Life Ins. Co., 368 F.3d 999, 1002 n. 2 (8th Cir.2004) (holding that an order explicitly reserving the determination of the amount of attorney's fees and pre-judgment interest did not become final until the district court later issued an order fixing the amounts); Lee v. L.B. Sales, Inc., 177 F.3d 714, 717-18 (8th Cir.1999) (holding that an order awarding sanctions but reserving determination of the amount of sanctions was not appealable until the subsequent entry of an order fixing the amount of sanctions). The August 2004 and March 2005 orders did not purport to dispose of all issues in the case. On its face, the August 2004 order indicated that the amounts of additional statutory penalties, pre-judgment interest and attorney's fees and costs remained unresolved. Similarly, the March 2005 order indicated that the amount of pre-judgment interest was yet to be determined.3 Thus, the April 21, 2005, notice of appeal was not taken from a final, appealable order and was ineffective to confer appellate jurisdiction upon this Court.

We next address whether the prematurely filed notice of appeal can be saved by Fed. R.App. P. 4(a)(2), which provides that a "notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry." We conclude that this rule does not save the notice of appeal in this case.

The Supreme Court explained in FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 274, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991), that Rule 4(a)(2) "permits a notice of appeal filed from certain nonfinal decisions to serve as an effective notice from a subsequently entered final judgment." However, the Supreme Court held that Rule 4(a)(2) applies "only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment." Id. at 276, 111 S.Ct. 648. By contrast, Rule 4(a)(2) does not save a premature appeal "from a clearly interlocutory decision—such as a discovery ruling or a sanction under Rule 11," because a "belief that such a decision is a final judgment would not be reasonable." Id. In FirsTier, the Supreme Court found that Rule 4(a)(2) saved a premature notice of appeal filed after the district court announced from the bench that it was granting summary judgment to the defendant on all claims. Id. at 270-71, 277, 111 S.Ct. 648. The plaintiff-appellant's belief in the finality of the oral ruling was reasonable because the bench ruling disposed of all claims and was a decision that would have been "final" under § 1291 and, therefore, appealable, had the judge immediately set forth the judgment and the clerk entered the judgment on the docket. Id. at 276-77, 111 S.Ct. 648.

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