Butler v. Coral Volkswagen, Inc., 86-5407

• Citation: 804 F.2d 612
• Decision Date: 27 October 1986
• Docket Number: No. 86-5407,86-5407
• Parties: 41 Empl. Prac. Dec. P 36,625, 6 Fed.R.Serv.3d 16 Felix BUTLER, Plaintiff-Appellee, Cross-Appellant, v. CORAL VOLKSWAGEN, INC., Defendant-Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 612

804 F.2d 612

41 Empl. Prac. Dec. P 36,625, 6 Fed.R.Serv.3d 16

Felix BUTLER, Plaintiff-Appellee, Cross-Appellant, v. CORAL VOLKSWAGEN, INC., Defendant-Appellant, Cross-Appellee.

No. 86-5407.

United States Court of Appeals,

Eleventh Circuit.

Oct. 27, 1986.

D. Culver Smith, III, Steel, Hector, Davis, Burns & Middleton, West Palm Beach, Fla., for defendant-appellant, cross-appellee.

Joseph A. Vassallo, Lake Worth, Fla., I. Jeffrey Pheterson, Raton, Fla., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before TJOFLAT, HATCHETT and CLARK, Circuit Judges.

CORRECTED OPINION

PER CURIAM:

This case is before the court on appellee's motion to dismiss the appeal as untimely. ¹

A. Facts.

The district court, 629 F.Supp. 1034, entered final judgment for plaintiff-appellee Felix Butler ("Butler") in this case on March 4, 1986. ² Defendant-appellant Coral Volkswagen ("Coral") claims that it did not receive a copy of this final judgment until March 12. As a result, on March 14, Coral filed what it labeled a "Motion for New Trial, Motion for Leave to Amend the Motion for New Trial, and Motion to Extend the Time for Filing Supporting Memorandum." On March 26, twenty-two days after final judgment, the district court granted Coral's motion for extension of time to file a supporting memorandum.

On April 3, Butler filed a motion to vacate the March 26 order. ³ Butler argued that Coral's March 14 motion was merely a motion for extension of time to file a new trial motion. Since it was not a motion for new trial, the court could not grant a motion to amend since there was nothing to amend. More fundamentally, Butler pointed out that the district court may not enlarge the time for filing a new trial motion. Fed.R.Civ.P. 6(b).

On April 15, before the trial court ruled on Butler's motion to vacate the March 26 order, Coral filed an "Amended Motion for New Trial and Memorandum of Law in Support of Motion." On April 24, the court denied Butler's motion to vacate the March 26 order, declaring that Coral's motion for new trial "stands as filed on April 16, 1986." On April 25, the court denied Coral's amended motion for new trial. May 3 was the sixtieth day after final judgment. ⁴ Coral noticed its appeal on May 27, thirty-two days after the court denied its new trial motion. The thirtieth day after the denial of the motion was May 25, a Sunday; May 26 was Memorial Day. Under Fed.R.App.P. 26(a), neither day could be included in calculating the thirty days Coral had to take an appeal from the district court's April 25 order. Thus, if the thirty-day period began on April 25, Coral's appeal is timely filed. See Newson v. First Alabama Bank of Huntsville, 604 F.2d 316 (5th Cir.1979) (where the day on which the filing period would have ended was a legal holiday, the party receives an additional day on which to file).

B. Analysis of Rules.

Notice of appeal in this case was filed eighty-four days after the entry of final judgment. Rule 4(a)(1) of the Federal Rules of Appellate Procedure provides that the losing party must file his notice of appeal "within thirty days after the date of entry of the judgment or order appealed from." The district court may extend the time for filing the appeal for an additional thirty days upon a showing of "excusable neglect." Fed.R.App.P. 4(a)(5). If the losing party files a timely Rule 59 motion for a new trial, however, the time for noticing the appeal begins to run "from the entry of the order denying a new trial or granting or denying any other such motion." Fed.R.App.P. 4(a)(4). The district court may not entertain a motion for new trial more than ten days after the entry of final judgment. Fed.R.Civ.P. 59(b). This time period may not be extended by the district court. Fed.R.Civ.P. 6(b).

Simply put, if the time for noticing the appeal began on the date of final judgment, this appeal must be dismissed. If, however, the time began to run when the district court denied the amended new trial motion, the appeal may proceed.

Coral asserts that its March 14 motion was a timely motion for new trial which, pursuant to Rule 4(a)(4), tolls the running of the appeal period until such motion is granted or denied. Butler contends that this motion was simply a request for an extension of time to file an initial new trial motion, and was not itself a valid new trial motion. As noted above, the March 14 motion was labeled by Coral as "Defendant's Motion for New Trial, Motion for Leave to Amend Motion for New Trial, and Motion to Extend the Time for Filing Supporting Memorandum." The entire text of the motion consists of the following:

Defendant, CORAL VOLKSWAGEN, INC., moves for a new trial, moves for leave to amend this motion for new trial in order to assert specific grounds upon which the motion for new trial is based, and moves to extend the time for filing a memorandum of law in support of the motion for new trial, on the following grounds:

1. Rule 59 of the Federal Rules of Civil Procedure requires motion for new trial to be served not later than ten days after the entry of the judgment.

2. Final Judgment in this matter was entered by the Clerk on March 4, 1986, but was not received by the undersigned attorney for Defendant until March 12, 1986, two days prior to the deadline for filing a motion for new trial.

3. The undersigned needs more than two days to prepare and serve a comprehensive motion for new trial and supporting memorandum.

Appellee's Motion to Dismiss Appeal, Exhibit C.

Butler correctly notes that a motion must "state with particularity the grounds therefor, and shall set forth the relief or order sought." Fed.R.Civ.P. 7(b)(1). Thus, failure to assert particular grounds can result in the denial of a new trial motion. See e.g., Stinebower v. Scala, 331 F.2d 366 (7th Cir.1964). Butler contends that failure to assert particular grounds can also deprive the movant of the tolling effect which a proper new trial motion would have provided. ⁵ In response, Coral claims that it reasonably relied on the district court's decision to entertain the new trial motion, and that equitable considerations justify treating their appeal as timely.

The Fourth Circuit was presented with this issue in Witt v. Merrill, 208 F.2d 285 (4th Cir.1953). In Witt, counsel for plaintiff made an oral motion for new trial, without stating the grounds therefor, as soon as the jury returned its verdict for the defendant. The court did not pass on the motion at the time, but postponed argument and gave plaintiff leave to file a brief in support. Over a month later, defendant claimed that the original motion was insufficient and that the court was without jurisdiction to entertain the amended motion. The district court, three months after final judgment, denied the new trial motion on the merits and on the ground that it was without jurisdiction to pass upon it. When plaintiff subsequently appealed, defendant moved to dismiss the appeal as untimely. Defendant claimed that since no grounds were stated for the original new trial motion, such motion could not serve to toll the period for filing an appeal. The court of appeals disagreed:

In so far as stating grounds is concerned, we think it enough to extend the time for taking appeal that the trial judge entertained the motion, postponed the hearing thereon and gave counsel leave to file brief in support of his position. The taking of such action by the trial judge distinguishes this case from the case of Fine v. Paramount Pictures, Inc., [181 F.2d 300 (7th Cir.1950) ], upon which defendant relies. It is elementary that where a motion for new trial is made in time and is entertained by the court, the time allowed for appeal does not begin to run until the motion is disposed of....

The liberal Rules of Civil Procedure must not be transformed by judicial interpretation into technical traps for the unwary.

Id. at 286. ⁶

In a similar case, the Seventh Circuit took a different view and disallowed an appeal. In Fine v. Paramount Pictures, Inc., 181 F.2d 300 (7th Cir.1950), plaintiff made an oral motion for new trial on the day of the verdict. No grounds were stated, and the district court set a hearing date on the motion for December 9, 1942, more than a month after the final judgment. The district court denied the new trial motion at that hearing, and plaintiff noticed his appeal twenty-eight days later. The court of appeals held that the original motion was insufficient because it failed to state any grounds for granting a new trial. Thus, the period for noticing an appeal was not tolled. The trial court was without power to hear the related motion, and could not thereby affect the finality of the judgment and enlarge the time for taking an appeal. Id. at 303-04.

C. The "Unique Circumstances" Doctrine.

The equitable considerations involved in Fine and Witt were reviewed by the Supreme Court in three cases decided in the early 1960's. In these cases, the Court developed a "unique circumstances" exception to the strict requirements of appellate Rule 4. See Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964) (mem.), rev'g 321 F.2d 393 (D.C.Cir.1963); Thompson v. Immigration and Naturalization Services, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964); Harris Truck Lines v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). These cases implicitly reject the reasoning of the Seventh Circuit in Fine.

In Thompson, twelve days after final judgment, Thompson notified INS that he planned to file a motion for new trial. INS raised no objection, and the district court specifically said the new trial motion was filed in "ample time." Within sixty days of the denial of the new trial motion, but not within sixty days of judgment, Thompson appealed. The Court recognized that the federal rules, if mechanically applied, would prevent the appeal. The Court...