Clough v. Rush

• Decision Date: 18 March 1992
• Docket Number: No. 91-2062,91-2062
• Citation: 959 F.2d 182
• Parties: 1992-1 Trade Cases P 69,758, 22 Fed.R.Serv.3d 1189 John CLOUGH, MD, Plaintiff-Appellant, v. Dominica RUSH; Rueben Marchisano, MD; Pete Grenko, MD; Donald Clark, Personal Representative for the Estate; James Hockenberry, MD; Robert Trimble; Donald W. Welch, all individual defendants sued in their individual capacities and officials of the Hospital sued in their official capacities; Adventist Health Systems, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 182

959 F.2d 182

1992-1 Trade Cases P 69,758, 22 Fed.R.Serv.3d 1189

John CLOUGH, MD, Plaintiff-Appellant, v. Dominica RUSH; Rueben Marchisano, MD; Pete Grenko, MD Donald Clark, Personal Representative for the Estate; James Hockenberry, MD; Robert Trimble; Donald W. Welch, all individual defendants sued in their individual capacities and officials of the Hospital sued in their official capacities; Adventist Health Systems, Inc., Defendants-Appellees.

No. 91-2062.

United States Court of Appeals Tenth Circuit.

March 18, 1992.

Denise M. Glore, Albuquerque, N.M., for plaintiff-appellant.

John B. Pound of Montgomery & Andrews, P.A., Santa Fe, N.M., for defendants-appellees.

Before LOGAN and BARRETT, Circuit Judges, and PATRICK F. KELLY, ^** District Judge.

PATRICK F. KELLY, District Judge.

The underlying antitrust action arises from the suspension of Plaintiff John Clough's medical privileges at Sierra Vista Hospital (SVH) in Truth Or Consequences, New Mexico. Dr. Clough seeks reversal of the district court's entry of summary judgment in favor of Defendants, who were physicians, administrators, and owners of the hospital at the time of the suspension. The district court dismissed the action on res judicata and collateral estoppel grounds. Prior to reaching a review of that ruling, however, we must address the threshold question of whether we have jurisdiction to consider Dr. Clough's appeal. Upon careful review of the issues presented, we answer that question in the affirmative, and likewise affirm the district court on the merits. ¹

Background

In March 1982, Dr. Clough applied for, and received, appointment to the medical staff at SVH as a general surgeon. In late 1984, he performed routine surgery on an elderly female patient. The next day, nurses noticed she had no urinary output. Two days after the surgery, Dr. Clough performed an intravenous pyelogram (IVP) on the patient. The test revealed blockage of the ureters. This is a very dangerous condition, as it can lead to kidney failure, which is life threatening.

Dr. Clough determined that sutures inserted during the initial operation caused the blockage. Without assistance from any other physicians, he performed a second operation to remove the sutures. During that surgery, Dr. Clough obtained an immediate flow of urine. As a consequence, he believed he had removed the blockage. He did not perform a second IVP to determine whether he had removed the entire blockage.

Approximately two weeks after the second surgery, the same patient was readmitted to SVH complaining of lower abdominal pain. Dr. Clough referred her to a different physician, who performed additional surgery after an IVP revealed there was a suture remaining in her right ureter. The patient and her daughter later contacted SVH administrators complaining about Dr. Clough and threatening to sue the hospital. After reviewing the matter, the hospital's executive committee suspended Dr. Clough's privileges. Following several hearings and a review of the case by a panel of outside physicians, the privileges were reinstated. Dr. Clough resigned from the medical staff in May 1985.

On November 20, 1986, Dr. Clough filed an action in New Mexico state court alleging violations of New Mexico's antitrust act, as well as other contract and tort claims. The state court granted summary judgment in favor of Defendants. That decision was affirmed on appeal. Clough v. Adventist Health Sys., Inc., 108 N.M. 801, 780 P.2d 627, 633 (1989). While that case was pending, Dr. Clough filed this action, asserting the same state court claims but adding two claims under the Sherman Antitrust Act, 15 U.S.C. §§ 1-2.

The district court in this case granted Defendants' motion for summary judgment, concluding that res judicata and collateral estoppel bar the federal lawsuit. That order, which is fifteen pages long and contains extensive legal discussion, was entered on January 31, 1991. The district court docket sheet reflects entry of the order on that date.

On February 19, 1991, Dr. Clough's attorney contacted counsel for the Defendants requesting a one-day extension to file a Fed.R.Civ.P. 59(e) motion. ² Defense counsel agreed to the extension, and the district court granted it. On February 20, Dr. Clough's attorney filed a self-styled "motion for reconsideration" pursuant to Rule 59(e). Defense counsel filed a response, citing Marane, Inc. v. McDonald's Corp., 755 F.2d 106 (7th Cir.1985), which pointed out that the court had no jurisdiction to entertain the motion for extension.

On March 7, 1991, the district court denied the motion for reconsideration. The court based its denial on the acknowledgment that it had no jurisdiction to entertain the untimely motion. Approximately eight days later, Dr. Clough's counsel filed a notice of appeal. At no time did counsel file a motion to extend the time to appeal. See Fed.R.App.P. 4(a)(5). In his reply in support of the motion for reconsideration, however, Dr. Clough argued that the time periods identified in Rule 59 did not apply to the case because the district court never entered a "separate document" pursuant to Fed.R.Civ.P. 58.

After this appeal was initiated, Defendants filed a motion to dismiss, arguing that the January 31 order triggered the time for filing an appeal. They urge that because the Rule 59 motion was untimely, it could not toll the thirty-day period for bringing an appeal. See Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264-65, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). Thus, they argue Dr. Clough's appeal period expired on March 2, 1991. Under Fed.R.App.P. 4(a)(5), a party may extend the time for appealing if a motion for extension is filed within thirty days of the expiration of the appeal period. Defendants argue that this appeal is untimely because Dr. Clough did not use this procedure. Instead, he simply filed a notice of appeal.

Conversely, Dr. Clough maintains that because no separate document was filed, as is required under Fed.R.Civ.P. 58, entry of the January 31 order did not trigger the thirty-day period for filing a notice of appeal. He contends that as a result, his motion for reconsideration and the subsequent notice of appeal were timely. After careful review of the issues presented, we hold that the absence of a separate document renders the January 31 order nonfinal. We conclude this action is properly before the court. On the merits, however, we affirm the district court.

I.

Fed.R.Civ.P. 58 states, in pertinent part, "[e]very 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 Under the former rules, it was not always clear when judgment entered for purposes of triggering the appeal process. The intended purpose of the existing rule is to eliminate those uncertainties. See Kline v. Department of Health & Human Servs., 927 F.2d 522, 523 (10th Cir.1991). When the 1963 amendments were made to Rule 58, the advisory committee added the following note:

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.' Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a)....

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.

Fed.R.Civ.P. 58 advisory committee's note (citations omitted). Thus, the rule applies in any case where there is uncertainty about whether final judgment has entered. United States v. Clearfield State Bank, 497 F.2d 356, 358 (10th Cir.1974).

The separate document rule does not apply, however, where "there is no question about the finality of the court's decision." Slade v. United States Postal Serv., 952 F.2d 357, 359 n. 1 (10th Cir.1991). Generally, orders containing neither a discussion of the court's reasoning nor any dispositive legal analysis can act as final judgments if they are intended as the court's final directive and are properly entered on the docket. See Kline, 927 F.2d at 523-24; see also, e.g., Laidley v. McClain, 914 F.2d 1386, 1390 (10th Cir.1990) (single page order adopting magistrate's recommendation on summary judgment meets requirements of Rule 58); Kunkel v. Continental Casualty Co., 866 F.2d 1269, 1272 n. 3 (10th Cir.1989) (court properly exercised jurisdiction where, despite absence of separate document, district court disposed of entire complaint); Clearfield, 497 F.2d at 358-59 (no separate document needed where order granting summary judgment is itself a separate document).

The order which the district court entered disposing of the motion for summary judgment does not meet Rule 58 requirements. In addition to being fifteen pages long, it contains detailed legal analysis and reasoning. Thus, it could not, standing alone, trigger the appeal process. A separate document constituting the court's final judgment was needed. Because no separate entry was made, the January 31 Order was not final.

Under certain circumstances, however, the parties may waive the separate document requirement. See Slade, at 359 n. 1. Normally this occurs where both parties proceed under the mistaken assumption that an order is final when, in fact, no separate document was ever filed. See generally Aviles v. Lutz, 887 F.2d 1046, 1047 n. 1 (10th Cir.1989) (court entertaining jurisdiction despite absence of separate document where, apparently, no objection was made and the district court "disposed of the entire complaint").

The Supreme Court has instructed that under such circumstances, the absence of a separate document should not be used to defeat consideration of the...