865 F.2d 160 (8th Cir. 1988), 87-1121, Martinez v. Arrow Truck Sales, Inc.

Docket Nº:87-1121.
Citation:865 F.2d 160
Party Name:Alejandro MARTINEZ, Appellant, v. ARROW TRUCK SALES, INC., Appellee. Claude Amar.
Case Date:August 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 160

865 F.2d 160 (8th Cir. 1988)

Alejandro MARTINEZ, Appellant,

v.

ARROW TRUCK SALES, INC., Appellee.

Claude Amar.

No. 87-1121.

United States Court of Appeals, Eighth Circuit

August 23, 1988

Submitted Aug. 4, 1988.

Henry J. Watson, Kansas City, Mo., for appellant.

William M. Modrcin, Kansas City, Mo., for appellee.

Before HEANEY, FAGG and BOWMAN, Circuit Judges.

PER CURIAM.

Alejandro Martinez appeals the district court's grant of judgment notwithstanding the verdict to Arrow Truck Sales (Arrow). Before this Court is Arrow's motion to dismiss the appeal as untimely. We deny the motion.

In April 1986 a jury returned a verdict for Martinez against Arrow and another defendant, Amar. The district court entered a judgment in accordance with the verdict. Both Arrow and Amar filed timely post-trial motions; Amar moved for a new trial and Arrow moved for judgment notwithstanding the verdict or in the alternative for a new trial. The district court granted in full both Amar's and Arrow's post-trial motions on May 29, 1986.

On June 27, 1986, Martinez filed a notice of appeal from that portion of the district court's order granting Arrow's post-trial

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motion. He did not appeal the order granting Amar a new trial. On July 7, 1986, the Clerk of this Court informed Martinez by letter that the appeal may have been premature because the district court had granted a new trial. The Clerk then told Martinez to get a Federal Rule of Civil Procedure 54(b) certification from the district court. On December 4, 1986, the district court entered a Rule 54(b) certification, making that court's previous order granting Arrow's post-trial motion final for purposes of appeal. Martinez contends that he specifically asked the district court clerk if it would be necessary to file a new notice of appeal and that he was told there was no need to do so. Martinez also spoke with the Court of Appeals Clerk and was told that he should wait to receive further instructions. Subsequently, Martinez responded in a timely fashion to all of the customary requests for filings by the Court of Appeals Clerk.

Arrow has filed a motion to dismiss Martinez's appeal, asserting it is untimely. Arrow contends that because Martinez failed to file a second, timely notice of appeal after the Rule 54(b) certification, this Court does not have jurisdiction. Martinez argues that...

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