Calhoun v. U.S., No. 79-4777

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore HUG, SCHROEDER and NELSON; HUG
Citation647 F.2d 6
PartiesNorman P. CALHOUN, Plaintiff-Appellant, and Viola E. Calhoun, Plaintiff, v. UNITED STATES of America, Defendant-Appellee.
Docket NumberNo. 79-4777
Decision Date14 May 1981

Page 6

647 F.2d 6
Norman P. CALHOUN, Plaintiff-Appellant,
and
Viola E. Calhoun, Plaintiff,
v.
UNITED STATES of America, Defendant-Appellee.
No. 79-4777.
United States Court of Appeals,
Ninth Circuit.
May 14, 1981.

Page 7

Norman P. Calhoun, Tulare, Cal., for plaintiff-appellant.

William B. Shubb, U. S. Atty., James E. White, Asst. U. S. Atty., Fresno, Cal., Gilbert E. Andrews, Robert L. Baker, Washington, D. C., for defendant-appellee.

Before HUG, SCHROEDER and NELSON, Circuit Judges.

HUG, Circuit Judge.

The only issue before this court at this time is the timeliness of Calhoun's appeal. This opinion arises in response to the United States' motion to dismiss Calhoun's appeal as untimely and to the court's sua sponte consideration of the requirements of Fed.R.App.P. 4(a)(4) and (6). For the reasons set forth below, we hold that the appeal was timely and deny the motion to dismiss.

FACTS

The facts relevant to our disposition of the motion begin with the date of entry of final judgment in this action, July 10, 1979.

Page 8

Ten days later, on July 20, 1979, Calhoun served the United States with a motion to correct judgment. This motion was filed in the district court on July 23, 1979, a Monday.

On August 27, 1979, there was a hearing on Calhoun's post-judgment motion. A document entitled "Minutes of the Court" shows that proceedings were held on that date and that the "(m)otion (was) argued and ordered denied." This document was signed by the deputy clerk, is referenced as docket control number 190, but contains no filing or other stamp of the district court. The district court docket reflects the following notation:

8-27-79 prcdgs on hrng on pltfs motn for correction of judgment; Motion argued and ordered denied.

The docket gives no indication that notice of this action was mailed to the parties.

On November 2, 1979, Calhoun filed a notice of appeal from the "order" denying his motion for correction of judgment. Simultaneously, Calhoun also filed or attempted to file a motion for extension of time for filing the notice of appeal. Apparently, no action was taken on Calhoun's motion for extension of time and the motion continues to lie dormant in the district court file.

On March 2, 1981, the United States moved to dismiss the appeal on the ground it was not timely filed. The United States asserts that an order denying Calhoun's motion was entered on August 27, 1979 and that Calhoun's appeal should have been filed on October 26, 1979, at the latest, i. e., sixty days after the August 27, 1979 date.

ANALYSIS
I

Timeliness of Calhoun's Motion

As a preliminary matter, we must first consider whether Calhoun's motion for correction of judgment, which we treat as a motion to alter or amend a judgment under Fed.R.Civ.P. 59(e), was timely. See Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir. 1981). We conclude it was.

Calhoun's Rule 59 motion was served 10 days after the date of entry of the final judgment. The motion was filed on the next court day, July 23, 1979, a Monday. Because the post-judgment motion was served within the 10-day period and was filed a "reasonable time" thereafter, the motion was timely. Fed.R.Civ.P. 59(e); Fed.R.Civ.P. 5(d); Howell v. Marmpegaso Compania Naviera, S. A., 566 F.2d 992 (5th Cir. 1978); 6A Moore's Federal Practice P 59.09(1) at 59-198 n.22 (2d ed.1980).

A timely Rule 59 motion suspends the time for filing a notice of appeal from the final judgment. See Whittaker v. Whittaker Corp., 639 F.2d at 520. The time period in which to file an appeal commences anew from the date of the entry of an order denying the motion. Fed.R.App.P. 4(a)(4). Here the 60-day period applies because the United States is a party. Fed.R.App.P. 4(a)(1).

II

The Entry Requirement

Precise identification of the date on which an order or judgment was entered is necessary whenever the timeliness of an appeal to this court is at issue. The date of "entry" is the critical event from which to measure the timeliness of an appeal. Absent such entry, a party will not ordinarily be found to have exceeded any of the time periods set forth in Fed.R.App.P. 4(a). See Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 688 & n.10 (4th Cir. 1978); accord, Yaretsky v. Blum, 592 F.2d 65, 66 (2d Cir. 1979).

A judgment or order is not entered within the meaning of Fed.R.App.P. 4(a)(1) or (4) unless it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Fed.R.App.P. 4(a)(6) expressly so provides. 1 Thus, we must determine

Page 9

whether the district court's disposition of the Rule 59 motion is contained in a separate order and whether any such order has been properly entered as provided for in Fed.R.Civ.P. 79(a). We conclude both elements are absent.

The district court docket notation referencing a hearing on the motion does not show the filing and entry of a separate order, nor does the notation show that the district court clerk treated the referenced document as an order by immediately mailing notice of entry by mail upon the parties pursuant to the commands of Fed.R.Civ.P. p. 77(d). Further, nothing clearly shows the date the notation of the August 27, 1979 hearing was made on the docket. Thus, there has been insufficient compliance with the requirements of Fed.R.Civ.P. 79(a). 2 Having a reviewed the referenced document, "Minutes of the Court," we cannot conclude that that document constitutes a separate "order" disposing of the motion so as to comply with Fed.R.Civ.P. 58. 3

In Healy v. Pennsylvania R. Co., 181 F.2d 934 (3d Cir. 1950), cert. denied, 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674 (1951), the Third Circuit addressed the issue of what constitutes sufficient "entry" of an "order" denying a timely post-judgment motion. In that case the district court filed a memorandum opinion which concluded with the sentence, "The motions are denied." The docket "entry" read:

April 12, 1949. Memorandum Opinion * * * denying motion to set aside verdict or for new trial, filed.

The court held that this did not constitute compliance with the entry requirement.

Amended Rule 73(a) clearly contemplates both an order and its entry in the docket in connection with such motions, explicitly providing that the time for appeal shall " * *...

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42 practice notes
  • RR Village Ass'n, Inc. v. Denver Sewer Corp., No. 803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1987
    ...v. Shouldice, 706 F.2d 742, 746 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983); Calhoun v. United States, 647 F.2d 6, 8-10 (9th The separate-document requirement is designed to reduce uncertainty on the part of an aggrieved party as to when the time to file a n......
  • Hearns v. San Bernardino Police Dept., No. 05-56214.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 1, 2008
    ...the parties have effectively waived the entry requirement by treating the order as an appealable judgment. See Calhoun v. United States, 647 F.2d 6, 10-11 (9th Cir.1981), overruled on other grounds, Acosta v. Louisiana Dep't of Health & Human Res., 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 1......
  • Griggs v. Provident Consumer Discount Company, No. 82-5082
    • United States
    • United States Supreme Court
    • November 29, 1982
    ...987, 100 S.Ct. 516, 62 L.Ed.2d 417 (1979). Cf. United States v. Jones, 669 F.2d 559, 561 (CA8 1982) (dictum); Calhoun v. United States, 647 F.2d 6, 10 (CA9 1981); United States v. Moore, 616 F.2d 1030, 1032 n. 2 (CA7 1980) (dictum), cert. denied, 446 U.S. 987, 100 S.Ct. 2972, 64 L.Ed.2d 844......
  • McCarthy v. Mayo, No. 86-2591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 1987
    ...U.S. ----, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986); Herrington v. Sonoma County, 706 F.2d 938, 939 (9th Cir.1983); Calhoun v. United States, 647 F.2d 6, 8 (9th Cir.1981), disapproved on other grounds, Acosta v. Louisiana Dept. of Health and Human Resources, --- U.S. ----, 106 S.Ct. 2876, 92 L.E......
  • Request a trial to view additional results
42 cases
  • RR Village Ass'n, Inc. v. Denver Sewer Corp., No. 803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1987
    ...v. Shouldice, 706 F.2d 742, 746 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983); Calhoun v. United States, 647 F.2d 6, 8-10 (9th The separate-document requirement is designed to reduce uncertainty on the part of an aggrieved party as to when the time to file a n......
  • Hearns v. San Bernardino Police Dept., No. 05-56214.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 1, 2008
    ...the parties have effectively waived the entry requirement by treating the order as an appealable judgment. See Calhoun v. United States, 647 F.2d 6, 10-11 (9th Cir.1981), overruled on other grounds, Acosta v. Louisiana Dep't of Health & Human Res., 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 1......
  • Griggs v. Provident Consumer Discount Company, No. 82-5082
    • United States
    • United States Supreme Court
    • November 29, 1982
    ...987, 100 S.Ct. 516, 62 L.Ed.2d 417 (1979). Cf. United States v. Jones, 669 F.2d 559, 561 (CA8 1982) (dictum); Calhoun v. United States, 647 F.2d 6, 10 (CA9 1981); United States v. Moore, 616 F.2d 1030, 1032 n. 2 (CA7 1980) (dictum), cert. denied, 446 U.S. 987, 100 S.Ct. 2972, 64 L.Ed.2d 844......
  • McCarthy v. Mayo, No. 86-2591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 30, 1987
    ...U.S. ----, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986); Herrington v. Sonoma County, 706 F.2d 938, 939 (9th Cir.1983); Calhoun v. United States, 647 F.2d 6, 8 (9th Cir.1981), disapproved on other grounds, Acosta v. Louisiana Dept. of Health and Human Resources, --- U.S. ----, 106 S.Ct. 2876, 92 L.E......
  • Request a trial to view additional results

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