Carter v. Beverly Hills Sav. and Loan Ass'n
| Citation | 884 F.2d 1186 |
| Decision Date | 26 September 1989 |
| Docket Number | No. 86-6610,86-6610 |
| Parties | Melvin Memphrey CARTER, Plaintiff-Appellant, v. BEVERLY HILLS SAVINGS AND LOAN ASSOCIATION; Southland Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Melvin Memphrey Carter, Los Angeles, Cal., pro per.
Gregory L. Dillion, Newmeyer, Landrum & Dillion, Newport Beach, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before HUG, ALARCON and KOZINSKI, Circuit Judges.
This case involves an appeal from the denial of a Rule 60(b) motion to vacate a judgment dismissing Carter's action to set aside a foreclosure sale on his home. The district court judge, believing that the parties had entered into a settlement agreement, dismissed the underlying action with a retention of jurisdiction for sixty days to reopen if settlement was not completed. Carter made a Rule 60 motion approximately eighteen months later, which the district court denied as untimely. Because the underlying judgment was never entered in accordance with Fed.R.Civ.P. 58, we reverse.
Carter brought this action in the California Superior Court against Beverly Hills Savings and Loan and Southland Company seeking to set aside a foreclosure sale of his home which had been accomplished by Southland Company acting as trustee under a deed of trust securing a loan from Beverly Hills Savings and Loan. Carter alleged that the foreclosure sale was in violation of a bankruptcy automatic stay and a stipulation between Carter and Beverly Hills Savings and Loan in the bankruptcy action.
This case was removed to federal court on the grounds that it was an action affecting Title 11, thus affording federal jurisdiction. A pretrial conference was set for March 25, 1985, and a trial date was set for April 30, 1985. Prior to the pretrial conference, the attorneys for the parties entered into a stipulation requesting that the district court vacate the existing pretrial conference and trial dates because the parties had agreed in principle upon a settlement. The settlement agreement was basically an agreement whereby Carter could repurchase the house. The stipulation noted that the settlement "would require the parties and their counsel to prepare releases, escrow instructions, title reports, etc. relating to the subject property which will take 30 days to prepare." The parties did not stipulate to dismissal of the action but instead only sought an order vacating the pretrial conference and trial dates, with a status report to be filed in 45 days. An order incorporating these terms was provided at the end of the stipulation document, but was never signed by the judge. Instead, at the time scheduled for the pretrial conference, the matter was called before the judge, who, after noting that counsel were not present, stated:
All right. The court has been informed through the law clerks that the matter's been settled, but we haven't got any paper work on that. Our standard minute order dismissing the case as settled with a 60-day retention of jurisdiction will issue.
If you could make a note on that one, Bob.
A form document entitled "Civil Minutes--General" was thereafter filled in showing the case title, and the presence of District Judge Harry L. Hupp, Deputy Clerk Robert Bolton, and Court Reporter Bob Stark. The minutes then set forth the following entry:
PROCEEDINGS: Pre Trial Conference
Counsel not present. Counsel inform that this matter has settled. Court dismisses the action by reason of settlement and retains jurisdiction over the matter for 60 days to vacate this order and to reopen the action upon a showing of good cause that the settlement has not been completed and further litigation is necessary. Entered ______ JS-6.
The minutes bear a stamp showing that they were entered on March 26, 1985. This entry stamp was initialed by a deputy clerk with the initials "SB." Another stamp shows that the minutes were mailed to counsel for the parties. These minutes were entered in the civil docket book as follows:
3-25-85 sb 18. crt dism actn reason of settlmnt & retn jurdctn 60 reopen if settlmnt not completed (ENT 3-26-85) MD JS 6 Mld cpys
Approximately 15 months later, on August 20, 1986, Carter filed a motion to remand, which was eventually taken off calendar and never granted or denied. On September 12, 1986, Carter notified the court that he was substituting himself for the attorney who had been representing him, and would proceed pro se. On October 9, 1986, Carter filed a motion to issue a preliminary injunction, a motion to refer the case to the district attorney, and a motion to reopen the case. The district court denied these motions on November 3, 1986, stating that the time within which to make a Rule 60 motion had long since passed, and the motions appear to have no merit. Carter timely appeals. We review the district court's denial of a Rule 60 motion for an abuse of discretion. Thompson v. Housing Auth., 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986).
The district court denied Carter's Rule 60 motion as untimely. A motion under Fed.R.Civ.P 60(b) must be made "within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken."
The use of the words "entered or taken" creates some ambiguity as to when the time for filing a Rule 60(b) motion begins to run. We find no case that differentiates "taken" from "entered". The Federal Rules of Civil Procedure have established a procedure by which a judgment is to be entered. The Supreme Court has commented that the purpose of these rules in relation to filing a notice of appeal, is to make it clear when the time for filing a notice of appeal begins to run. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85, 98 S.Ct. 1117, 1119-20, 55 L.Ed.2d 357 (1978) (per curiam). The need for clarity is equally compelling when it comes to filing post-judgment motions under Rule 59 and 60. Both these rules contain time requirements which are as rigidly applied as the time requirement for filing a notice of appeal. See Fed.R.Civ.P. 6(b) (). Wherever the rules establish a time requirement that limits a litigant's ability to obtain relief from a final judgment, it is imperative that the district court provide a clear signal that the time period within which that relief can be sought has begun to run. For this reason, we hold that the time requirements of Rule 60(b) only commence running upon "entry" of final judgment that complies with Rule 58. See 11 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2781 at 6 & n. 5 (1973) ().
It follows that where a final judgment complying with Rule 58 was never entered, a post-judgment motion may not be deemed untimely. Cf. Allah v. Superior Court, 871 F.2d 887, 890 (9th Cir.1989) ().
We therefore now turn to the question of whether the judgment Carter was seeking to reopen through his Rule 60(b) motion was properly entered. Entry of judgment is governed by Fed.R.Civ.P. 58, which requires that every judgment must be set forth on a separate document. The document that embodies the district court's decision in the present case is entitled "Civil Minutes--General", and contains a description of what transpired in the courtroom. This court has previously held that such a document does not satisfy the separate document requirement in Rule 58. See Calhoun v. United States, 647 F.2d 6, 8-9 (9th Cir.1981).
Rule 58 also requires that the order be signed by the clerk. The signature of a duly authorized deputy clerk would be adequate. A clerk's ministerial duties may be performed by a deputy clerk. 28 U.S.C. Sec. 956 (1982). In this case, Robert Bolton was the deputy clerk present in the courtroom. He obviously prepared the minutes but did not sign them. On the minutes there is a file stamp stating "ENTERED Mar. 26 1985, Clerk, U.S. District Court Central District of California by SB Deputy." This attestation is obviously not by the deputy clerk, Robert Bolton, who was in the courtroom and prepared the minutes, but rather an attestation by the deputy clerk who entered the minutes in the docket book. The bottom right-hand page of the minutes bears the initials of a deputy clerk "LRM," with no indication of the significance of those initials. Rule 58 contemplates a minute order prepared by a deputy clerk who then signs the minute order he prepares.
The entry of the court's action in the civil docket book confirms that the requirements of Rule 58 were not met. As previously noted, the entry in the civil docket book is as follows:
3-25-85 sb 18. crt dism actn reason of settlmnt & retn jurdctn 60 reopen if settlmnt not completed (ENT 3-26-85) MD JS 6 Mld cpys This entry does not show that a separate order was filed and entered as required by Rule 58, but rather that the document entered was the minutes of the action taken by the judge at a pretrial conference. In Calhoun, we found the entry of similar minutes not to comply with Rule 58.
Beverly Hills Savings and Loan relies upon Beaudry Motor Co. v. ABKO Properties, Inc., 780 F.2d 751 (9th Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986). In that case, the district court issued a minute order which stated "IT IS ORDERED." That document was signed by a deputy clerk, entered in the civil docket book, and mailed to counsel. Id. at 754-55. In this case, we have civil...
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