Bankers Trust Company v. Mallis, No. 76-1359

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; BLACKMUN
Citation98 S.Ct. 1117,55 L.Ed.2d 357,435 U.S. 381
Decision Date28 March 1978
Docket NumberNo. 76-1359
PartiesBANKERS TRUST COMPANY, Petitioner, v. Samuel MALLIS and Franklyn Kupferman

435 U.S. 381
98 S.Ct. 1117
55 L.Ed.2d 357
BANKERS TRUST COMPANY, Petitioner,

v.

Samuel MALLIS and Franklyn Kupferman.

No. 76-1359.
March 28, 1978.
Rehearing Denied May 15, 1978.

See 436 U.S. 915, 98 S.Ct. 2259.

Page 382

PER CURIAM.

Respondents sued petitioner Bankers Trust Co. under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b) (1976 ed.), for allegedly fraudulent statements. The District Court for the Southern District of New York dismissed the action on the ground that the fraud alleged had not occurred "in connection with the purchase or sale" of a security, as required by § 10(b). Mallis v. Federal Deposit Ins. Corp., 407 F.Supp. 7 (1975). The Court of Appeals for the Second Circuit reversed, holding that respondents were "purchasers [of securities] by virtue of their acceptance of [a] pledge" of stock and that petitioner was "a seller by virtue of its release of [a] pledge." Mallis v. Federal Deposit Ins. Corp., 568 F.2d 824, 830 (1977). We granted certiorari to consider the correctness of these rulings of the Court of Appeals. 431 U.S. 928, 97 S.Ct. 2630, 53 L.Ed.2d 243 (1977).

We find ourselves initially confronted, however, by a difficult question of federal appellate jurisdiction. As the Court of Appeals noted in its opinion, a search of the District Court record fails to uncover "any document that looks like a judgment." 568 F.2d, at 827 n. 4. Because both the parties and the District Court "proceeded on the assumption that there was an adjudication of dismissal," ibid.,1 the Court of Appeals felt free to consider the merits of the appeal. The Court of Appeals action, however, conflicts with the decisions of other Courts of Appeals concluding that a judgment set forth on a "separate document" is a prerequisite to appel-

Page 383

late jurisdiction.2 We conclude that the Court of Appeals for the Second Circuit was correct in deciding that it had jurisdiction in this case despite the absence of a separate judgment.

Appellate jurisdiction was invoked under 28 U.S.C. § 1291, which provides that the "courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States." The issue posed is whether a decision of a district court can be a "final decision" for purposes of § 1291 if not set forth on a document separate from the opinion. The issue arises because of Fed.Rule Civ.Proc. 58, which reads in part:

"Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a)." 3

Page 384

We assume, without deciding, that the requirements for an effective judgment set forth in the Federal Rules of Civil Procedure must generally be satisfied before § 1291 jurisdiction may be invoked.4 We nonetheless conclude that it could not have been intended that the separate-document requirement of Rule 58 be such a categorical imperative that the parties are not free to waive it.

The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 begins to run.5 According to the Advisory Committee that drafted the 1963 amendment:

"Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., 'the plaintiff's motion [for summary judgment] is granted,' see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a

Page 385

sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post-v rdict motions and for the purpose of appeal. . . .

"The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment." 28 U.S.C.App., p. 7824.

The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. See United States v. Indrelunas, 411 U.S. 216, 220-222, 93 S.Ct. 1562, 1564-1565, 36 L.Ed.2d 202 (1973). Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which a timely appeal would then be taken. Wheels would spin for no practical purpose.6

Page 386

In United States v. Indrelunas, we recognized that the separate-document rule must be "mechanically applied" in determining whether an appeal is timely. Id., at 221-222, 93 S.Ct., at 1564-1565.7 Technical application of the separate-judgment requirement is necessary in that context to avoid the uncertainties that once plagued the determination of when an appeal must be brought. Cf. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, ...

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635 practice notes
  • Talley v. U.S. Dept. of Agriculture, No. 09-2123.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 2010
    ...are over in the district court, the failure to enter a proper judgment does not prevent an appeal. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). We hope that the district judge's failure to perform his ministerial duties will not cause Talley any problems ......
  • Bonin v. Calderon, Nos. 92-56299
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 1995
    ...to run, and that Rule 58's technical separate judgment requirement is not jurisdictional and can be waived. Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 388, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978); see also Ingram v. Acands, Inc., 977 F.2d 1332, 1339 n. 7 (9th Cir.1992); Blazak v. Ri......
  • Cooper v. Hopkins, Civil Action No. 3:78-CV-207WS.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 3, 1995
    ...There is nothing to indicate that the parties have consented to waive the requirement of Rule 58. See Bankers Trust Company v. Mallis, 435 U.S. 381, 386-88, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978). Therefore, without entry of judgment, the motions of Tara Walker and Terry Wallace for com......
  • Wilcox v. Georgetown Univ., No. 19-7065
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 9, 2021
    ...that any judgment "be set out in a separate document," subject to exceptions not applicable here. See also Bankers Tr. Co. v. Mallis , 435 U.S. 381, 384–85, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). Generally, a dismissal of a complaint without prejudice is not a final appealable order. Because......
  • Request a trial to view additional results
635 cases
  • Talley v. U.S. Dept. of Agriculture, No. 09-2123.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 12, 2010
    ...are over in the district court, the failure to enter a proper judgment does not prevent an appeal. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). We hope that the district judge's failure to perform his ministerial duties will not cause Talley any problems ......
  • Bonin v. Calderon, Nos. 92-56299
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 28, 1995
    ...to run, and that Rule 58's technical separate judgment requirement is not jurisdictional and can be waived. Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 388, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978); see also Ingram v. Acands, Inc., 977 F.2d 1332, 1339 n. 7 (9th Cir.1992); Blazak v. Ri......
  • Cooper v. Hopkins, Civil Action No. 3:78-CV-207WS.
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • March 3, 1995
    ...There is nothing to indicate that the parties have consented to waive the requirement of Rule 58. See Bankers Trust Company v. Mallis, 435 U.S. 381, 386-88, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978). Therefore, without entry of judgment, the motions of Tara Walker and Terry Wallace for com......
  • Wilcox v. Georgetown Univ., No. 19-7065
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 9, 2021
    ...that any judgment "be set out in a separate document," subject to exceptions not applicable here. See also Bankers Tr. Co. v. Mallis , 435 U.S. 381, 384–85, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). Generally, a dismissal of a complaint without prejudice is not a final appealable order. Because......
  • Request a trial to view additional results

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