Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 82-4584
| Citation | 746 F.2d 278 |
| Decision Date | 12 November 1984 |
| Docket Number | No. 82-4584,82-4584 |
| Parties | , 40 Fed.R.Serv.2d 481, 18 Fed. R. Evid. Serv. 391 HARCON BARGE CO., INC., Plaintiff-Appellee, v. D & G BOAT RENTALS, INC., Defendant Third-Party Plaintiff-Appellant. and M/V CHARLES D, Defendant-Appellee Cross-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION CO., Third-Party Defendant Appellant-Cross-Appellee. SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-Appellant, v. M/V I.C. HOSKINS, Her Engines, Boilers, Tackle, Etc., In Rem, Defendant-Appellee. SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-Appellant, v. M/V IBERVILLE, Her Engines, Boilers, Tackle, Etc., In Rem, et al., Defendants-Appellees. SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-Appellant Cross-Appellee, v. M/V CHARLES D, Her Engines, Boilers, Tackle, Etc., In Rem, and D & G Boat Rentals, Inc., Defendants-Appellees Cross-Appellants. SOUTHERN PACIFIC TRANSPORTATION CO., Plaintiff-Appellant Cross-Appellee, v. M/V MARION HAGESTAD, et al., Defendants-Appellees Cross-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Christovich & Kearney, Lawrence J. Ernst, J. Warren Gardner, Jr., New Orleans, La., for plaintiff-appellant.
Larry S. Craig, Civil Div., Torts Branch, U.S. Dept. of Justice, Washington, D.C., Cliffe E. Laborde, III, Lafayette, La., for M/V IBERVILLE et al.
Robert McCleskey, Gerard T. Gelpi, New Orleans, La., for M/V I.C. HOSKINS & Smith Corp.
Donald L. King, New Orleans, La., for M/V MARION HAGESTAD & King.
Edwin Spivey Gault, Greenville, Miss., for M/V CHARLES D. & HARCON BARGE.
W. Gerald Gaudet, Lafayette, La., for D & G Boat Rentals.
Appeals from the United States District Court for the Western District of Louisiana.
Before RUBIN, REAVLEY, and TATE, Circuit Judges.
This appeal, by a single notice of appeal, is from a single judgment in five suits that were consolidated for trial under Fed.R.Civ.P. 42(a). On the same day the notice of appeal was timely filed, the opposing parties in one of the five consolidated actions filed a timely motion to amend the judgment. Subsequently, pursuant thereto, an amended judgment was entered. No further notice of appeal was filed.
Under Fed.R.App.P. 4(a)(4), the effect of this filing of a motion to amend the judgment was that "the time for appeal for all parties shall run from the entry of an order" disposing of this motion. The rule further provides: "A notice of appeal filed before the disposition.... shall have no effect." In Griggs v. Provident Consumer Discount Company, 459 U.S. 56, 103 The harsh result of this mandated rigid application of this seemingly functionless provision of the rule is, in our view, that we must dismiss this appeal. Under Griggs, the timely filed motion to amend the judgment nullified the prior notice of appeal, and no notice of appeal was filed after the order was entered that granted the motion and amended the original judgment in a slight respect. We therefore lack jurisdiction to hear this appeal and must dismiss it.
S.Ct. 400, 74 L.Ed.2d 225 (1982), the Supreme Court has held that a court of appeal has no power or discretion to waive the defect of prematurity of a notice of appeal filed before entry of the order disposing of such a motion. The Court further held that such a premature notice of appeal is a "nullity", and "it is as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act." 459 U.S. at 61, 103 S.Ct. at 403
Nevertheless, we must admit that our determination to this effect, required we believe by Griggs, is made complicated by the circumstance that the motion to amend was filed by the defendants in only one of the five consolidated cases and, arguably, should have affected the appellate delays in that case only. Ultimately, however, we feel unable to evade the rigorous application Fed.R.App.P. 4(a)(4) mandated by Griggs because (as will be explained below), the district court, all parties, and the district clerk treated the five consolidated actions as a single, combined suit--requiring but one judgment for all combined actions, and but one notice of appeal by any one party to all or any of the combined suits. Thus, under Rule 4(a)(4) the motion to amend this single judgment had the effect of not commencing the delay within which to notice on an appeal "for all parties" until entry of the order disposing of the motion, which thus required a new notice of appeal in order to confer appellate jurisdiction upon this court.
"Entry" of Judgment
Before setting forth in detail the facts of the present case, we deem it advisable to clarify what is meant by the date of "entry" of judgment, for purposes of determining the timeliness of a notice of appeal or of a motion to remand or alter a judgment, and how such entry is noted in the dockets of the district courts of the Fifth Circuit.
In their initial arguments to this court, reflecting a not uncommon confusion in this regard, all counsel argued timeliness on the basis that the appellate and post-judgment motion delays commenced with the notice of the filing on December 8, 1982 of the single judgment that disposed of the five consolidated suits. This judgment was filed in the Deputy Clerk's office in Opelousas, La., for the Opelousas-Lafayette Division (where the case was tried) of the United States District Court, Western District of Louisiana. Instead, however, timeliness is measured from the date of entry of the judgment on the docket sheet of the case in the Clerk of District Court's records at Shreveport, in this case, December 14, 1982 (i.e., six days after the judgment was filed in Opelousas and mailed from there to Shreveport).
In the instant case, whether timeliness is governed by the date of filing (December 8) or of entry (December 14) of the judgment, the timely served (December 15) and filed (December 21) motion to amend had as its consequence, in either event (see Part III infra ), the draconian effect under Rule 4(a)(4) of nullifying the otherwise-timely prior notice of appeal filed December 21 and, in the absence of a new notice, of depriving us of appellate jurisdiction. Nevertheless, because of some general confusion as to the matter, we deem it appropriate for the benefit of the bar to describe the governing principles, as well as the practice among the clerks of the district courts of the Fifth Circuit, with regard to the entry of a judgment or order.
The basic issue of timeliness in this regard concerns provisions of Fed.R.App.P. 4, as well as their relationship to Fed.R.Civ.P.
79. FRAP Rule 4(a)(1) provides that in a civil case the notice of appeal "shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment." (Emphasis added.) However, if a timely post-judgment motion is filed under Fed.R.Civ.P. 50(b) (for judgment notwithstanding the verdict), 52(b) (to amend or make additional findings of fact) or 59 (for a new trial, or to alter or amend the judgment), then "the time for appeal for all parties shall run from the entry of an order denying a new trial or granting or denying any other such motion." Fed.R.App.P. 4(a)(4) (emphasis added). Fed.R.Civ.P. 59(b), (e), provides that a motion for a new trial or to alter or amend a judgment "shall be served not later than 10 days after the entry of the judgment." (Emphasis added)
With regard to what is an "entry" of an order or judgment, Fed.R.Civ.P. 79(a) provides that the clerk of district court will maintain a "civil docket" book in which the file number of the civil action "shall be noted on the folio of the docket whereon the first entry of the action is made," and that "[a]ll papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action." The rule specifically provides that "[t]he entry of an order or judgment shall show the date the entry is made." Id.
The uniform practice of the clerks of the district courts of the Fifth Circuit is to signify the date of entry of an order or judgment under Rule 79(a), as follows: The date the judgment is filed is placed in the left-hand column of the case's docket sheet, followed by the description of the order or judgment in the right-hand column captioned for that purpose. If the judgment or order is entered at a later date than the date of filing, then such date of entry is added as a concluding note of the description of the judgment (which is in the right-hand column), by adding "Dkt", "Dk't", or "Dkt'd" (i.e., "docketed"), followed by the date of such entry. 1
Overview of the Principal Procedural Facts and Issue
A single judgment was filed on December 8, 1982 and entered on the docket sheet in the clerk's office on December 14, 1982, which disposed of all claims that had been asserted in five suits that had been consolidated for trial. A party (Southern Pacific) to all five consolidated suits timely filed a single notice of appeal as to this judgment on December 21, 1982, by which it contests the awards made by the judgment as to each of the claims advanced by each of the five consolidated suits. On the same day, the defendants (M/V Iberville and Tidewater) in one of the consolidated suits filed a motion to amend the judgment with regard to its imposition of such upon them. The motion was granted and an amended judgment was entered on January 31, 1983. No further notice of appeal was filed by any party.
The defendants have filed a motion to dismiss the appeal because no new notice of appeal was filed after the amended However, if we regard the five suits as consolidated for "trial" (only) and hence regard this judgment, although in a single document and filed only in the principal of the five consolidated suits, as actually five judgments--one for each of the five consolidated suits--then,...
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