Crossman v. Maccoccio, 86-1058

• Decision Date: 21 May 1986
• Docket Number: No. 86-1058,86-1058
• Citation: 792 F.2d 1
• Parties: Donna CROSSMAN, et al., Plaintiffs, Appellants, v. Michael MACCOCCIO, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

792 F.2d 1

6 Fed.R.Serv.3d 27

Donna CROSSMAN, et al., Plaintiffs, Appellants, v. Michael MACCOCCIO, et al., Defendants, Appellees.

No. 86-1058.

United States Court of Appeals, First Circuit.

May 21, 1986.

Milton Stanzler and Abedon, Michaelson, Stanzler & Biener, Providence, R.I., on memorandum in response to show cause order.

Joseph F. Penza, Jr., Providence, R.I., on memorandum in opposition to appellant's response to show cause order.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

PER CURIAM.

Because of a potential timeliness jurisdictional problem, plaintiffs-appellants were directed to show cause why their appeal should not be dismissed in part. The parties have now responded, and we conclude the appeal must be dismissed to the extent plaintiffs-appellants purport to appeal from the October 9, 1985 judgments and the November 8 or 14, 1985 denial of their motion for a new trial.

We recount the background. Plaintiffs brought a Sec. 1983 action complaining of police officers' entry into plaintiffs' home and subsequent conduct towards plaintiffs. Prior to trial, defendants made an offer of judgment pursuant to Fed.R.Civ.P. 68. This rule provides that "[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." Plaintiffs did not accept the offer. The jury subsequently awarded damages in an amount less than the offer. Judgments for each of the plaintiffs entered on October 9, 1985. A few days later, plaintiffs moved for a new trial on damages. Plaintiffs' motion for new trial was denied on either November 8 or November 14, 1985. Since the result is the same, we will assume November 14, 1985 is the date the order entered. Outstanding at that time were defendants' application for costs, including attorney's fees, under Rule 68 and plaintiffs' application for costs. Apparently concluding that these matters precluded the October 9, 1985 judgments from being final ones, plaintiffs did not file their notice of appeal within 30 days of the November 14, 1985 denial of their motions for a new trial. On December 20, 1985, the district court entered an opinion disposing of the outstanding motions for costs and attorney's fees. On January 17, 1986, plaintiffs filed a notice of appeal purporting to appeal from the October 9, 1985 judgments, the denial of plaintiffs' motion for new trial, and the December 20, 1985 order granting defendants costs and attorney's fees under Rule 68. The notice of appeal is timely as to the December 20, 1985 order concerning costs and attorney's fees. The question now before us is whether it is timely as to the October 9, 1985 judgments and November order denying plaintiffs' motions for a new trial.

Plaintiffs first argue that their appeal may be salvagable because of a motion to extend the time for appealing they filed. Fed.R.App.P. 4(a)(5) requires a motion to extend to be filed "not later than 30 days after the expiration of the time [for appealing] prescribed by ... Rule 4(a)." The time for appealing from the October 9 judgments and November 14 order expired on December 16, 1985. Thirty days after December 16, 1985 was January 15, 1986. Hence, if the October 9 judgments became final on November 14, 1986, plaintiffs' motion to extend, filed on January 17, 1986, was untimely and no court would have the power to extend the time for appeal. See Silvia v. Laurie, 594 F.2d 892 (1st Cir.1979); 9 Moore's Federal Practice 4-104 ("the result of failure to file a timely notice of appeal, followed by failure to make a timely motion to be permitted to file one out of time, extinguishes the right to appeal beyond revival by either the district court or the court of appeals"). Consequently, the crucial question is whether the fact that the October 9, 1985 judgments had not disposed of the parties' claims for costs, including defendants' claim under Rule 68 for costs and attorney's fees, has prevented the October 9, 1985 judgments from being final ones.

The fact that the October 9, 1985 judgments did not include whatever amount of costs that plaintiffs, as prevailing parties, would be entitled to did not preclude finality. See Fed.R.Civ.P. 58 (entry of judgment shall not be delayed for the taxing of costs). Nor would have a failure to include the amount of Sec. 1988 attorney fees to be awarded a prevailing plaintiff prevented finality. See White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982); Exchange National Bank of Chicago v. Daniels, 763 F.2d 286, 292 (7th Cir.1985) ("It may be that the Court did not mean in White to make the decision on the merits appealable independently of the fees; the case nominally held only that fees were so separate that they need not be raised under Rule 59(e) within 10 days. But the rationale leading to this result--that fees have little or nothing to do with the merits--also produces an appealable final decision, which in turn sets the outer limit within which the notice of appeal must be filed. As a result, the Court's effort in White to prevent forfeitures of fees ... now can create forfeitures of challenges to the decision on the merits (if litigants do not act in the 30 days provided by Rule 4(a))"), reh'g. granted on other grounds, 768 F.2d 140 (7th Cir.1985). M. Green, "From Here to Attorney's Fees: Certainty, Efficiency, and Fairness in the Journey to the Appellate Courts," 69 Cornell L.Rev. 207, 231 (1984).

Some courts, in the context of deciding when the failure to determine the amount of attorney's fees to be awarded precludes...