Casey v. Albertson's Inc.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Silverman
• Citation: Casey v. Albertson's Inc., 362 F.3d 1254 (9th Cir. 2004)
• Decision Date: 05 April 2004
• Docket Number: No. 02-57198.,02-57198.
• Parties: Shannon CASEY, Plaintiff-Appellant, v. ALBERTSON'S INC., a Delaware corporation, Defendant-Appellee.

362 F.3d 1254

Shannon CASEY, Plaintiff-Appellant, v. ALBERTSON'S INC., a Delaware corporation, Defendant-Appellee.

No. 02-57198.

United States Court of Appeals, Ninth Circuit.

Submitted March 4, 2004.^*

Filed April 5, 2004.

Patricia J. Barry, esq., Los Angeles, CA, for the plaintiff/appellant.

Kimberly M. Talley, esq., Los Angeles, CA, for the defendant/appellee.

Appeal from the United States District Court, for the Central District of California; A. Howard Matz, District Judge, Presiding. D.C. No. CV-00-06950-AHM.

Before SILVERMAN, GOULD, and BEA, Circuit Judges.

SILVERMAN, Circuit Judge:

We hold today that when the parties treat a fully dispositive summary judgment order as if it were a final judgment, the requirement in Federal Rule of Civil Procedure 58 that the judgment "be set forth on a separate document" can be waived. Bankers Trust Co. v. Mallis, 435 U.S. 381, 382, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978).

I. Facts

Appellant Shannon Casey filed this lawsuit against Albertson's, her employer, alleging sexual harassment and discrimination based on marital status in violation of California's Fair Employment and Housing Act. She alleged that Pete King, the manager of the Albertson's where she worked, sexually harassed her and then transferred her to another store when she returned to work following her pregnancy. Casey alleges that her transfer to another store was illegal because there was another employee, Pepper Smith, who was less senior than Casey who should have been transferred instead. She claims that her transfer "was in response to Casey's rebuffing King's sexual advances and King learning that Casey had not divorced her husband as King wanted her to do and that she had become pregnant."

Casey failed to respond to Albertson's requests for admissions. As a result, under Federal Rule of Civil Procedure 36(a), she was deemed to have admitted that, among other things, (1) King did not discriminate against her on the basis of gender; (2) King did not discriminate against her on the basis of her marital status; (3) King did not discriminate against her on the basis of her pregnancy; and (4) King did not make the decision to transfer her. Casey's attorney also failed to attend a hearing on Albertson's motion for summary judgment.

The district court granted Albertson's summary judgment on all claims on August 28, 2001. Summary judgment was granted in the form of a civil minute order. Although the judge's seven page civil minute order disposed of all of Casey's claims and concluded with "IT IS SO ORDERED," no separate judgment was entered.

On August 28, 2002, exactly one year from the entry of summary judgment, Casey moved for relief from judgment under Federal Rule of Civil Procedure 60(b), arguing that the judgment should be set aside because of excusable neglect, new evidence, and fraud, misrepresentation, or misconduct. The gist of her motion was that by means of an inexpensive Internet investigation service, of which she had only recently become aware, Casey was able to locate Pepper Smith, who could confirm that Smith had less seniority than Casey but was not transferred to another store. The court noted that the one year filing limit for relief from judgment under Rule 60(b)(1), (2), & (3) "is an outer limit," and that "[p]laintiff delayed filing this motion until the last possible day."¹ The court also ruled that the delay in locating Pepper Smith was unjustified. On November 26, 2002, the court denied Casey's motion, ruling that Casey had not demonstrated excusable neglect, newly discovered evidence, or fraud, misrepresentation, or misconduct, pursuant to Rule 60(b)(1), (2), & (3), respectively. Casey filed her notice of appeal from that ruling on December 19, 2002.

At some point after the district court denied her Rule 60(b) motion and the notice of appeal had been filed, Casey noticed that the district court had failed to enter a final judgment on a document separate from its summary judgment ruling. On July 22, 2003, eight months after the district court denied her Rule 60(b) motion, Casey lodged with the district court a proposed form of judgment. On August 8, 2003, the district court entered a minute order acknowledging that "although summary judgment was granted in favor of Defendant Albertson's, Inc. on August 28, 2001, thereby terminating the case, a final judgment on a separate document was not entered." However, the court held that it no longer had jurisdiction over the case because a notice of appeal had been filed. It continued: "However, if either Plaintiff or Defendant Albertson's Inc. believes that a separate document is necessary ... and that this court does have jurisdiction to enter a judgment ..., either party may file a brief ... to that effect...." After briefing by both sides, the district court ruled that, pursuant to Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), the litigants had waived strict compliance with the separate judgment requirement by proceeding as if a separate judgment had been entered.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. Motions for relief from judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court and will not be reversed absent an abuse of discretion. SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001). A district court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. Bateman v. United States Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000).

III. Discussion

Casey spends the bulk of her time on appeal rearguing the merits of the district court's grant of summary judgment. However, her notice of appeal expressly states she is appealing only the denial of her Rule 60(b) motion. Normally, the merits of a case are not before the panel in reviewing a Rule 60(b) motion. See Wages v. I.R.S., 915 F.2d 1230, 1234 (9th Cir. 1990) ("an appeal from a denial of Rule 60(b) relief does not bring up the underlying judgment for review") (internal quotation marks omitted). There are thus two issues before the court: First, does the fact that the district court did not enter a judgment separate from its summary judgment minute order somehow allow the district court or this court to revisit the merits of the summary judgment ruling; and, second, did the district court abuse its discretion in denying Casey's Rule 60(b) motion?

A. The Separate Judgment Rule

Federal Rule of Civil Procedure 58(a)(1) provides that "[e]very judgment... must be set forth on a separate document." It further states that "unless the court orders otherwise, the clerk must, without awaiting the court's direction, promptly prepare, sign, and enter the judgment when ... the court denies all relief." Fed.R.Civ.P. 58(a)(2)(A)(iii); but see Fed. R.App. P. 4(a)(7)(B)("A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a)(1) does not affect the validity of an appeal from that judgment or order."). "Only when both" rules Rule 58 and Rule 79(a) — which tells the parties how the clerk must enter documents on the civil docket — "are satisfied is there an `entry of judgment'" that tells the parties they may appeal. Radio Television Espanola S.A. v. New World Entm't, 183 F.3d 922, 930 (9th Cir.1999). "The separate document requirement ... exists so that the parties will know exactly when the judgment has been entered and they must begin preparing post-verdict motions or an appeal." Carter v. Beverly Hills Sav. & Loan Ass'n, 884 F.2d 1186, 1194 (9th Cir.1989) (Kozinski, J., dissenting).

"Although a final judgment requires a `separate document,' neither the Supreme Court nor this court views satisfaction of Rule 58 as a prerequisite to appeal." Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir.2003) (citation omitted); see also United States v. Lummi Indian Tribe, 235 F.3d 443, 448 (9th Cir. 2000). "A ruling is final for purposes of § 1291 if it (1) is a full adjudication of the issues, and (2) clearly evidences the judge's intention that it be the court's final act in the matter." Nat'l Distrib. Agency v. Nationwide Mut. Ins. Co., 117 F.3d 432, 433 (9th Cir.1997) (citation and internal quotation marks omitted).

The Supreme Court's decision in Bankers Trust, while not on all fours with this case, leads us to the conclusion that the district court's failure to file a separate judgment does not affect any of the issues in this appeal. In Bankers Trust, "[t]he 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." 435 U.S. at 383, 98 S.Ct. 1117. There, the district court failed to enter a judgment as a separate document, but the district court's "opinion and order" contained the language "[c]omplaint dismissed in its entirety. So ORDERED." Id. at 382 & n. 1, 98 S.Ct. 1117. The Court concluded 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." Id. at 384, 98 S.Ct. 1117.

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.

... The need for certainty as to the timeliness of the appeal [i.e., the purpose of Rule 58] ... should not prevent the parties from waiving the separate-judgment requirement where one has accidentally not been entered.

... Here, the District Court clearly evidenced its intent that the opinion and order from which an appeal is taken would represent the final decision in the case. A judgment of dismissal...