Allender v. Raytheon Aircraft Co.

• Decision Date: 09 March 2006
• Docket Number: No. 05-3081.,05-3081.
• Citation: 439 F.3d 1236
• Parties: Peggy ALLENDER, Plaintiff Appellant, v. RAYTHEON AIRCRAFT COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

439 F.3d 1236

Peggy ALLENDER, Plaintiff Appellant, v. RAYTHEON AIRCRAFT COMPANY, Defendant-Appellee.

No. 05-3081.

United States Court of Appeals, Tenth Circuit.

March 9, 2006.

COPYRIGHT MATERIAL OMITTED

Jim Lawing, Wichita, Kansas, for Plaintiff-Appellant.

Terry Mann of Martin, Pringle, Oliver, Wallace & Bauer, Wichita, Kansas, for Defendant-Appellee.

Before LUCERO, BALDOCK, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case is a reminder of how procedural rules can affect the issues a court can consider on appeal. Plaintiff-Appellant Peggy Allender sought to appeal the district court's October 15, 2004 final order entering summary judgment in favor of Raytheon Aircraft Company ("Raytheon"). She waited to file her notice of appeal until after the district court denied her motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). Although a Rule 59(e) motion tolls the time to file a notice of appeal if the motion is filed within ten days of entry of a final judgment, see Fed. R.App. P. 4(a)(4)(A)(iv), Ms. Allender's motion was not properly filed within the ten-day period. Accordingly, we lack jurisdiction to address her appeal from the summary judgment order. Ms. Allender also appeals the district court's denial of her motion to amend, which the district court deemed untimely and considered as a motion for reconsideration under Federal Rule of Civil Procedure 60(b). Because the district court properly converted her motion into a Rule 60(b) motion and Ms. Allender has failed to show that the district court abused its discretion in denying the motion, we affirm the judgment of the district court.

I. Background

Ms. Allender filed a lawsuit against Raytheon alleging that Raytheon interfered with her rights under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., by terminating her for excessive absences. Ms. Allender claimed that her absences were the result of facial pain arising from a root canal procedure, a condition Raytheon had previously certified as a serious medical condition. Raytheon denied that it had interfered with her FMLA rights, claiming that Ms. Allender failed to qualify for FMLA leave because she did not provide Raytheon with notice or certification that she was taking FMLA-qualified leave. On October 15, 2004, the district court entered a final order granting Raytheon summary judgment.

Ms. Allender filed a motion to alter or amend the judgment under Rule 59(e) on October 22, 2004. This motion was not accompanied by a memorandum of law, but rather requested an additional twenty days in which to file a supporting memorandum. The district court granted the extension on October 27, 2004, and Ms. Allender filed the supporting memorandum on November 15, 2004. In its response to Ms. Allender's motion to amend, Raytheon argued that Ms. Allender's Rule 59(e) motion was untimely because it was not filed within ten days from the entry of final judgment and asked the district court to convert the motion into one brought under Rule 60(b), which may be filed at any time but is subject to more stringent standards. The district court accepted Raytheon's argument, finding that Ms. Allender's Rule 59(e) motion was untimely because the court lacked jurisdiction to extend the time for filing a Rule 59(e) motion and, under District of Kansas Local Rule 7.1(a), the motion was not complete until a brief or memorandum was filed. Construing the motion as a Rule 60(b) motion, the district court then denied Ms. Allender's request for reconsideration, finding that her arguments failed to show a basis for relief under Rule 60.

On February 17, 2005 Ms. Allender filed a notice of appeal, which stated:

Take notice that plaintiff Peggy Allender appeals to the United States Court of Appeals for the Tenth Circuit from the Order of the United States District Judge J. Thomas Marten entered February 7, 2005, denying plaintiff's motion, filed under Rule 59, to amend the Court's Judgment entered October 15, 2004, based on the findings of fact and conclusions of law in favor of defendant and against the plaintiff.

R. Vol. IV, p. 906. Ms. Allender's opening brief to this Court asked us to review the district court's grant of summary judgment de novo. The brief did not address the district court's ruling on her motion to alter or amend the summary judgment order. Raytheon argues that we lack jurisdiction to consider Ms. Allender's appeal from the summary judgment decision for two reasons: (1) her notice of appeal was untimely, and (2) the notice of appeal limits the scope of this appeal to Ms. Allender's motion to amend.

II. Discussion

A. Jurisdiction

This Court can exercise jurisdiction only if a notice of appeal is timely filed. United States v. Smith, 182 F.3d 733, 734 (10th Cir.1999). "A timely notice of appeal is both mandatory and jurisdictional." United States v. Langham, 77 F.3d 1280, 1280 (10th Cir.1996). Federal Rule of Appellate Procedure 4(a)(1)(A) provides that in a civil case, a party 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). However, the filing of certain motions can toll the time for filing a notice of appeal. See Fed. R.App. P. 4(a)(4)(A). For example, the thirty-day period is tolled by filing a motion "to alter or amend the judgment under Rule 59," Fed. R.App. P. 4(a)(4)(A)(iv), or by filing a motion "for relief under Rule 60 if the motion is filed no later than 10 days ... after the judgment is entered," Fed. R.App. P. 4(a)(4)(A)(vi).

The district court entered a final judgment on October 15, 2004. Ms. Allender did not file her notice of appeal until February 17, 2005. Thus, there is no question that her notice of appeal was filed more than thirty days after the entry of a final judgment. Ms. Allender argues that her appeal was timely because her Rule 59(e) motion tolled the time for her to file a notice of appeal. Raytheon claims that Ms. Allender's Rule 59(e) motion did not toll the thirty-day period because the motion was untimely and not supported by a memorandum of law.

Raytheon's argument relies on an interpretation of Rule 7.1(a) of the Rules of Practice of the United States District Court for the District of Kansas. Raytheon argues that Local Rule 7.1(a) requires all motions to be accompanied by a brief memorandum, and that Ms. Allender's Rule 59(e) motion was untimely because it failed to comply with the local rule. We need not decide whether the motion failed to comply with the local rule because Ms. Allender's motion failed to comply with Federal Rule of Civil Procedure 7(b)(1), a rule similar to, but less rigorous than, Local Rule 7.1(a).

Federal Rule of Civil Procedure 7(b)(1) requires that "[a]n application to the court for an order shall be by motion which . . . shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought." Fed.R.Civ.P. 7(b)(1). The standard for particularity has been understood to mean "reasonable specification." Martinez v. Trainor, 556 F.2d 818, 820 (7th Cir.1977) (internal quotation marks omitted). Thus, a motion that fails to state any grounds for relief or a motion that simply states that there are several reasons for relief without explaining those grounds for relief is insufficient under Rule 7(b)(1). See id. at 820 (holding that a defendant who failed to state "even one ground for granting the motion" failed to meet the standard of "reasonable specification"); Talano v. Northwestern Med. Faculty Found., Inc., 273 F.3d 757, 760-61 (7th Cir.2001) (rejecting as incomplete under Rule 7(b)(1) a motion which sought "reconsideration of [the district court's] decision to dismiss his ADEA claims for several reasons which will be more fully addressed by a Memorandum in Support which Plaintiff seeks leave to file"). The motion Ms. Allender filed on October 22, 2004 stated, in relevant part:

Plaintiff moves for an Order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Petitioner also requests an additional 20 days in which to file a supporting Memorandum and any appropriate affidavit that would be useful to the Court in ruling on this motion.

R. Vol. IV, p. 869. This motion did not meet the requirements of Rule 7(b)(1). It did not provide a single ground for relief, let alone state the grounds for relief with "reasonable specification." Accordingly, Ms. Allender's "Rule 59 motion" was not a properly filed motion under Rule 7(b)(1) and was therefore insufficient to toll the period for filing a notice of appeal. See Riley v. Northwestern Bell Tel. Co., 1 F.3d 725, 726-27 (8th Cir.1993) (holding that a skeletal motion that does not satisfy Rule 7(b)(1) does not toll the time to file a notice of appeal because the contrary rule would defeat the purpose of the time limit, "whittle away at the rules and ultimately render them meaningless and unenforceable").

This Court's decision in Grantham v. Ohio Casualty Co., 97 F.3d 434 (10th Cir. 1996), does not compel a different conclusion. In Grantham, the defendant moved for dismissal because the plaintiff failed to file the notice of appeal within 30 days. Id. at 435. The plaintiffs argued that their "motion to reconsider" should be construed as a Rule 59(e) motion that tolls the time for filing a notice of appeal. Id. We noted that the 1993 amendments to Federal Rule of Appellate Procedure 4 allowed motions filed pursuant to Rule 60 within ten days of the entry of judgment to toll the period for filing an appeal. Id. Without considering the substance of the "motion to reconsider," this Court held that "[b]ecause the motion to reconsider was filed within ten days after the entry of judgment, it qualified as a Rule 60(b) motion [which tolled the time for an appeal] even without considering the subsequently filed supporting brief." Id. In that case, however, the plaintiff's initial motion provided grounds...