FHC Equities v. MBL Life Assurance Corp.

• Decision Date: 18 December 1998
• Docket Number: Nos. 97-1736,97-2115,s. 97-1736
• Citation: 188 F.3d 678
• Parties: (6th Cir. 1999) FHC Equities, L.L.C., Plaintiff-Appellant, v. MBL Life Assurance Corporation, a New Jersey Corporation, Defendant-Appellee. Argued (97-2115):
• Court: U.S. Court of Appeals — Sixth Circuit

Page 678

188 F.3d 678 (6th Cir. 1999)

FHC Equities, L.L.C., Plaintiff-Appellant, v. MBL Life Assurance Corporation, a New Jersey Corporation, Defendant-Appellee.

Nos. 97-1736, 97-2115

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued (97-2115): December 18, 1998

Decided and Filed: August 18, 1999

Rehearing Denied Sept. 14, 1999.

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 96-74954--Patrick J. Duggan, District Judge. [Copyrighted Material Omitted] H. Nathan Resnick, RESNICK & ASSOCIATES, W. Bloomfield Hills, Michigan, for Appellant.

Alan M. Greene, Marilyn A. Peters, DYKEMA GOSSETT PLLC, Bloomfield Hills, Michigan, for Appellee.

Before: NORRIS and BATCHELDER, Circuit Judges; WISEMAN,^* District Judge.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

This is an appeal of a dispute concerning a purchase agreement for the sale of land brought pursuant to diversity jurisdiction. The district court granted summary judgment and entered a final judgment for the Defendant-Appellee, MBL Life Assurance Corp., on April 11, 1997, denied FHC Equities' ("Plaintiff's") Rule 59(e) motion on June 10, 1997, and denied Plaintiff's Rule 60(b) motion on October 1, 1997. On December 8, 1998, this court dismissed Plaintiff's direct appeal and its appeal from the denial of its Rule 59(e) motion for lack of jurisdiction [Case No. 97-1736]. We will explain the reasoning for that decision herein. In addition, we AFFIRM the district court's denial of Plaintiff's Rule 60(b) motion [Case No. 97-2115].

I. PROCEDURAL HISTORY

On April 11, 1997, the district court granted summary judgment and entered a final judgment for the Defendant. On April 28, 1997, the Plaintiff filed a Motion to Alter or Amend the Judgment pursuant to Fed. R. Civ. P. 59(e). The district court considered the motion and denied it on the merits by order entered June 10, 1997, ruling that the Plaintiff had presented no new issues that would entitle it to relief under Rule 59(e).

Plaintiff filed a notice of appeal from the April 11th judgment on July 1, 1997 [Case No. 97-1736], within 30 days of the court's denial of the Rule 59(e) motion, but not within 30 days of the entry of the April 11 judgment. The Defendant filed a Motion to Dismiss the Appeal for lack of subject matter jurisdiction, arguing that because the Rule 59(e) motion was untimely, it did not toll the time for appeal and thus, the appeal was untimely.

After the first appeal was filed, the Plaintiff filed a motion for relief under Fed. R. Civ. P. 60(b)(1) in the district court, arguing that Plaintiff's attorney mistakenly interpreted the federal rules, believing that Rule 6(e) extended by three days the time for filing a Rule 59(e) motion. The district court denied the motion and the Plaintiff filed a timely appeal from that decision [Case No. 97-2115].

II. CASE NO. 97-1736 - Rule 59(e) Motion

Before oral argument, the panel granted the Defendant's motion to dismiss the first appeal, No. 97-1736, as untimely, noting that a single opinion resolving both appeals would follow. We now explain why the Plaintiff's appeal in Case No. 97-1736 was untimely and thus, divested this Court of subject matter jurisdiction.

A timely filing of a notice of appeal is mandatory and jurisdictional. Browder v. Director, Dep't of Corrections of Ill., 434 U.S. 257, 264 (1978); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985). A notice of appeal in a civil case "must be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from." Fed. R. App. P. 4(a). Plaintiff-Appellant does not dispute that its first notice was not filed within 30 days of the entry of the April 11 judgment. Instead, Plaintiff argues that the Motion to Alter or Amend the Judgment tolled the time for filing an appeal and therefore, the notice was timely because it was filed within 30 days of the district court's disposition of that motion.

A timely motion under Rule 59 will toll the time for appeal until the court rules on the motion¹. Fed. R. App. P. 4(a)(4). However, if a Rule 59 motion is not timely filed, it does not toll the time for appeal. Browder, 434 U.S. at 264-65 (holding that an undesignated motion, construed as either a motion for a new trial under rule 59(a) or a motion to alter or amend the judgment under rule 59(e), filed 28 days after the district court entered judgment, did not toll the time for appeal even though the district court considered the merits of the motion); see also Rhoden v. Campbell, 153 F.3d 773, 773-74 (6th Cir. 1998) (holding that an untimely filed Rule 59(e) motion does not toll the time for appeal and the district court could not enlarge that time by granting an extension of time to file the motion).

Rule 59(e) provides that a motion to alter or amend the judgment "shall be filed no later than 10 days after entry of the judgment." Fed. R. Civ. P. 59(e). In an actual count of days, Plaintiff filed the motion 17 days after the entry of judgment (April 11 to April 28). However, the Rules provide that when the time period for filing a motion is less than 11 days, we must exclude intermediate holidays, Saturdays, and Sundays. Fed. R. Civ. P. 6(a). Here, the judgment was filed on Friday, April 11; when we exclude the holidays, Saturdays, and Sundays, we arrive at Friday, April 25, as the last day on which the Rule 59(e) motion could be filed. Plaintiff filed its motion on Monday, April 28, 1997, one day late.

Plaintiff argues that the motion was timely filed because Fed. R. Civ. P. 6(e) allows an extra three days for filing in some situations. That rule provides:

(e) Additional Time After Service by Mail.

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed time period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

Fed. R. Civ. P. 6(e).

Plaintiff attempts to analogize several cases to the case at bar, but neglects to mention that every court that has considered this precise issue (including this Court in unpublished opinions²), has rejected the Plaintiff's argument. See, e.g., Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 467-68 (5th Cir. 1998); Parker v. Board of Public Utilities of Kansas City, Kan., 77 F.3d 1289, 1290-91 (10th Cir. 1996); Derrington-Bey v. District of Columbia Dep't of Corrections, 39 F.3d 1224, 1225-26 (D.C. Cir. 1994); Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 870-71 (3d Cir. 1994); Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972); Davis v. Lukhard, 106 F.R.D. 317, 318 (E.D. Va. 1984); see also 1 James W. Moore et al., Moore's Federal Practice 6.05[3], at 6-35 (3d ed. 1998) ("Rule 6(e) does not apply to time periods that begin with the filing in court of a judgment or order. Thus, Rule 6(e) does not apply to the 10-day period that runs from entry of judgment for moving to alter or amend judgment pursuant to Rule 59(e)."); cf. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1113 (11th Cir. 1993) (relying on cases interpreting Rule 6(e) in relation to Rule 59(e) to hold that extension of time under Rule 6(e) does not apply to filing a motion for a new trial under Rule 59(a); language of time limits under Rules 59(b) and 59(e) is identical); Shults v. Henderson, 110 F.R.D. 102, 104-05 (W.D.N.Y. 1986) (same).

We think the D.C. Circuit has correctly explained why the extension in Rule 6(e) does not apply to Rule 59(e) motions:

Mere quotation of Rule 6(e) shows why it is inapplicable to Rule 59(e) motions. The period for filing a Rule 59(e) motion does not -- in the words of Rule 6(e) -- begin with "service of a notice." True, the clerk of the district court must "immediately" serve by mail a notice of the entry of a judgment (Fed. R. Civ. P. 77(d)). But the critical point for measuring the timeliness of a Rule 59(e) motion is not the date of service, nor is it the date of the court's order. The 10 days allowed by Rule 59(e) begin with the clerk's ministerial act of entering the court's judgment is a "book" -- today, often in the form of an automated system -- "known as the 'civil docket'" (Fed. R. Civ. P. 79(a)) . . . . To be sure, 10 days for preparing and serving a motion to alter or amend a judgment, even 10 working days, is not much time. Yet there is no doubt that strict compliance is required. District courts do not have even the customary discretion given by Fed. R. Civ. P. 6(b) to enlarge the Rule 59(e) period. . . . The period is to be kept short presumably because a timely Rule 59(e) motion deprives the judgment of finality.

Derrington-Bey, 39 F.3d at 1225 (citations omitted). The Plaintiff cannot point us to one court that has considered this issue and accepted the argument that Rule 6(e) extends the 10 day time limit for filing a motion under Rule 59(e). In addition, the cases cited by Plaintiff are wholly inapposite.³ Therefore, we adopt the reasoning of the numerous other courts which have found Fed. R. Civ. P. 6(e) inapplicable to motions filed pursuant to Fed. R. Civ. P. 59(e).

Finally, we note that the fact that the district court ruled on the merits of the motion does not make the motion or the appeal timely. Denley v. Shearson/American Express, Inc., 733 F.2d 39 (6th Cir. 1984), superseded by statute as stated in Arnold v. Arnold Corp., 920 F.2d 1269 (6th Cir. 1990). Although a separate holding in Denley was superseded by statute, the holding regarding the issue at hand is still good law. In Denley, this Court reviewed a case where a party filed an untimely Rule 59(e) motion and the district court ruled on the merits of the motion. Id. at 41. This Court held that the fact "[t]hat the District Court nonetheless considered the [untimely Rule 59(e)] motion cannot affect the timeliness of the appeal; the District Court is...