Cohen v. Curtis Publishing Company
Decision Date | 15 July 1964 |
Docket Number | No. 17618.,17618. |
Citation | 333 F.2d 974 |
Parties | L. Gilbert COHEN, Appellant, v. CURTIS PUBLISHING COMPANY, Curtis Circulation Company, Cowles Magazines, Inc., and The Hearst Corporation, Appellees. |
Court | U.S. Court of Appeals — Eighth Circuit |
L. Gilbert Cohen, pro se.
John J. McGirl, Jr., of Doherty, Rumble & Butler, St. Paul, Minn., for Curtis Pub. Co. and Curtis Circulation Co.
Lawrence C. Brown, of Faegre & Benson, Minneapolis, Minn., for Cowles Magazines, Inc.
Edward C. Stringer, of Stringer, Donnelly & Sharood, St. Paul, Minn., for Hearst Corporation.
Before VOGEL, MATTHES and RIDGE, Circuit Judges.
On September 7, 1960, plaintiff-appellant commenced this private anti-trust action to recover treble damages in the amount of $900,000 against Curtis Publishing Company, Curtis Circulation Company, Time, Inc., Life Circulation Company, Cowles Magazines, Inc., The Hearst Corporation and Newsweek, Inc. The complaint charged a conspiracy among the various defendants to exclude the plaintiff from the sponsored circulations market and to allocate that market to themselves, all in violation of the Sherman and Clayton Anti-Trust Laws, 15 U.S.C.A. § 1 et seq. and 15 U.S.C.A. § 12 et seq.
On July 1, 1962, motions of the defendants Time, Inc., and Life Circulation Company for summary judgment were granted by the District Court. D.C. Minn., 1962, 31 F.R.D. 569. Summary judgment granted therein was affirmed by this court per curiam in Cohen v. Time, Inc., 8 Cir. 1963, 312 F.2d 747, certiorari denied 375 U.S. 850, 84 S.Ct. 106, 11 L.Ed.2d 77.
On September 19, 1963, the motions of the defendants Curtis Publishing Company, Curtis Circulation Company, The Hearst Corporation and Cowles Magazines, Inc., for summary judgment were ordered granted by the District Court. See 229 F.Supp. 354.
On September 30, 1963, plaintiff moved the District Court for an order amending its order for summary judgment dated September 19, 1963, for the apparent purpose of deleting the word "wrongfully" which appeared in the District Court's order and memorandum opinion.
On October 17, 1963, the District Court certified that there was no just reason for delay and expressly directed the entry of final judgment in favor of the four defendants with which we are concerned herein. In so doing, the District Court stated:
Pursuant thereto final judgment was entered on October 17, 1963.
On October 29, 1963, the District Court entered a written order denying plaintiff's motion of September 30, 1963, requesting the deletion of the word "wrongfully" contained in the court's order of September 19, 1963, supra.
Also on November 26, 1963, plaintiff presented to the District Court a motion for leave to prosecute his appeal in forma pauperis under 28 U.S.C.A. § 1915. In denying such motion and in certifying that the appeal was "not taken in good faith", the District Court specifically corrected the statement in plaintiff's notice of appeal, calling attention to the fact that plaintiff claimed final judgment was entered on October 29, 1963, whereas final judgment had been entered on October 17, 1963.
Upon plaintiff's failure to docket the appeal in this court, the defendants, pursuant to Rule 75(j) of the Federal Rules of Civil Procedure, 28 U.S.C.A., moved that the appeal be docketed and that it then be dismissed. It is that motion of the defendants which is before this court for consideration. The issues raised by defendants' motion to dismiss are threefold:
As to the first issue regarding the timeliness of plaintiff's notice of appeal, the question is, of course, from what date did the 30-day appeal period commence to run, i. e., from the entry of final judgment on October 17, 1963, or from the formal denial on October 29, 1963, of plaintiff's motion filed September 30, 1963, requesting the deletion of the word "wrongfully". See Rule 73(a), Federal Rules of Civil Procedure, 28 U.S.C.A. We believe that the District Court's entry of final judgment as of October 17, 1963, was an effective denial of plaintiff's motion of September 30, 1963, to delete the word "wrongfully" so that the 30-day period within which to file notice of appeal commenced on October 17, 1963. The final judgment is specifically based on the order of September 19, 1963, and is, therefore, an approval of such order and a denial of plaintiff's request to amend by the deletion of the word "wrongfully". It impliedly and effectively denied plaintiff's motion. The Court of Appeals for the Second Circuit in Mosier v. Federal Reserve Bank of N. Y., 2 Cir., 1942, 132 F.2d 710, held that the entry of a final decree had the effect of denying a motion for rehearing pending before the court at the time the final decree was entered and that the subsequent formal order denying the motion was wholly unnecessary and did not extend the time for filing the appeal. At page 712 the court said:
(Emphasis supplied.)
See, also, Agostino v. Ellamar Packing Co., Inc., 9 Cir., 1951, 191 F.2d 576, 577, 13 Alaska 34, wherein the court, in considering a similar problem, said:
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