Lowry v. Douglas

• Decision Date: 12 January 2000
• Docket Number: No. 99-1750,99-1805,99-1750,99-1805
• Citation: 211 F.3d 457
• Parties: (8th Cir. 2000) Margaret Lowry, Appellant/Cross-Appellee, v. McDonnell Douglas Corporation, Appellee/Cross-Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 457

211 F.3d 457 (8th Cir. 2000)

Margaret Lowry, Appellant/Cross-Appellee, v. McDonnell Douglas Corporation, Appellee/Cross-Appellant.

No. 99-1750,99-1805

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: January 12, 2000

Filed: April 27, 2000

Rehearing and Rehearing En Banc

Denied June 2, 2000^*

Appeal from the United States District Court for the Eastern District of Missouri.

Before BOWMAN, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

BOWMAN, Circuit Judge.

This case is before us for the second time, on appeal from the order of the District Court granting summary judgment to McDonnell Douglas Corporation (MDC) on the wrongful death claim of plaintiff Margret Lowry.¹ Lowry alleges that MDC. defectively designed and failed to warn of defects in a United States Air Force F-15 aircraft that crashed at Spangdahlem Air Base in Germany on May 30, 1995, killing Major Donald Lowry, plaintiff's decedent. The District Court concluded that MDC was shielded from liability by the federal military contractor defense set forth in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Lowry filed her first notice of appeal out of time, and the District Court allowed the defective filing, notwithstanding Lowry's failure to file a motion and make a showing that would justify extending the filing deadline under Federal Rule of Appellate Procedure 4(a). Two days after the notice of appeal was docketed, Lowry did file a motion for an extension under Rule 4(a)(5), but the District Court denied that motion as moot. On MDC's motion, we dismissed the first appeal for lack of jurisdiction. As we will explain in more detail, Lowry then filed a motion with the District Court invoking Federal Rule of Civil Procedure 60(b) and seeking relief from the District Court's earlier orders relating to the untimely notice of appeal. The court granted the motion, which ultimately allowed Lowry to timely file another notice of appeal. We have taken with the case MDC's motion to once again dismiss the appeal for lack of jurisdiction, an issue MDC also raises in a cross appeal from the District Court's decision to grant relief from judgment under Rule 60(b). Cf. Karras v. Karras, 16 F.3d 245, 247 (8th Cir. 1994) (per curiam) (noting that party seeking reversal of district court's failure to grant Rule 60(b) relief should file a notice of appeal from that order). It is to the question of our jurisdiction that we turn first.

I.

In order for us to make our discussion as easy to follow as possible, and to assist the reader in referring back to the pertinent facts and the timing of events, we will forgo further narrative description of the procedural history of the case in favor of a chronological listing, beginning with the District Court's decision to grant summary judgment on the merits.

June 19, 1998 The District Court granted MDC's motion for summary judgment on the merits. Counsel for MDC has represented to this Court that he faxed the District Court's order to counsel for Lowry on this date; in fact, the copy of the order in the addendum to Lowry's brief (which she has called "Appendix I") bears a typewritten notation at the top "cc: Lou Franecke [Lowry's counsel] (by fax) 6/19/98" and fax legends showing the document was faxed twice on June 19, once from the District Court and again from the offices of MDC's counsel.

June 24, 1998 Judgment was entered on the District Court docket.

July 24, 1998 The thirty days allowed for filing a timely notice of appeal from the summary judgment, as provided in Federal Rule of Appellate Procedure 4(a), expired.

July 27, 1998 Lowry tendered her notice of appeal to the District Court.

July 29, 1998 Lowry's notice of appeal was filed. On it was handwritten: "Leave to file granted 7/29/98 /s/ E. Richard Webber."

July 31, 1998 Lowry filed a motion styled "Ex Parte Motion by Plaintiff to File Notice of Appeal per Federal Rule of Appellant [sic] Procedure 4(a)(5)." The motion sought an extension of time to file a notice of appeal from the summary judgment, alleging "excusible [sic] neglect and good cause" for the delay.

August 6, 1998 The District Court denied the "Ex Parte Motion" as moot.

October 13, 1998 MDC filed with the Court of Appeals a motion to dismiss the appeal for lack of jurisdiction. In the motion, MDC argued that Lowry's notice of appeal was untimely, and that the court's notation purporting to grant "leave to file" was not effective to extend the time for filing the notice of appeal, unaccompanied as it was by a Rule 4(a) motion from Lowry and findings by the District Court.

November 10, 1998 This Court granted MDC's motion to dismiss the appeal. That judgment, in its entirety, reads as follows: "The motion of appellee for dismissal of this appeal is granted. The appeal is hereby dismissed. See Eighth Circuit Rule 47A(b)."This Court's Rule 47A(b) sets out the procedure for filing "a motion to dismiss a docketed appeal on the ground the appeal is not within the court's jurisdiction."²

January 6, 1999 The mandate issued on our judgment dismissing the appeal.

January 19, 1999 Lowry filed in the District Court a document styled "Notice and Motion to Relieve Plaintiffs [sic] from Denial as Moot Motion to Grant Leave to Extend Time for Filing Notice of Appeal (FRCP 60, FRAP 4(a)(5) and 4(a)(6))." In the motion Lowry acknowledged that "[t]he District Court cannot grant untimely Appeals to be filed unless findings that the conditions prescribed by the Rules (FRAP 4(a)(5) or 4(a)(6)) have been satisfied." Notice and Motion at 2. Lowry continued, "By the Judge not designating and finding good cause of [sic] excusable neglect pursuant to Motion, this does not confirm [sic] jurisdiction on the Court of Appeals." Id. at 4.

February 12, 1999 The District Court vacated its order granting leave to file the untimely notice of appeal. The court noted that it "incorrectly treated [Lowry's] notice of appeal as a motion for an extension of time "; this was error, the court said, because the notice of appeal was unaccompanied by a motion and a showing of excusable neglect. Order at 3. The court also vacated its order denying as moot Lowry's Rule 4(a)(5) motion. The court gave MDC ten days to respond to the revived 4(a)(5) motion.

Lowry also had argued in her 60(b) motion that she was entitled to relief under Federal Rule of Appellate Procedure 4(a)(6) because she did not receive written notice of the entry of judgment. The District Court declined to address that argument, noting that it was not raised in the original 4(a)(5) motion for an extension of time to file a notice of appeal. (The court also denied Lowry's later motion to reconsider that ruling.)

March 8, 1999 The District Court granted Lowry's Rule 4(a)(5) motion, finding the requisite excusable neglect. The court noted that the reasons for the delay were "within Lowry's counsel's control, [but] do not indicate bad faith so much as carelessness in keeping up with filing deadlines." Order at 5. The court put Lowry on notice that she had ten days to file a new notice of appeal.

March 15, 1999 Lowry timely filed her second notice of appeal from the original summary judgment granted to MDC.

March 29, 1999 MDC filed with this Court yet another motion to dismiss the appeal for lack of jurisdiction, which we ordered taken with the case. As we have said, MDC also raises the jurisdictional issue in a cross appeal from the District Court's decision to grant Lowry's motion for Rule 60(b) relief.

II.

We begin with the question of whether the District Court properly granted Lowry's motion filed under Federal Rule of Civil Procedure 60(b). Rule 60(b) provides, as relevant here, that a district "court may relieve a party . . . from a final judgment, order, or proceeding for . . . mistake." The motion must be filed, however, "within a reasonable time, and . . . not more than one year after the judgment, order, or proceeding was entered or taken." The District Court determined that it could properly consider Lowry's 60(b) motion filed nearly six months after the orders in question were entered, and then held that the court was mistaken in granting "leave to file" the untimely notice of appeal without a motion from Lowry. The court also held that it erred in denying Lowry's original 4(a)(5) motion as moot, a decision the court made because it had accepted for filing (albeit mistakenly) the defective notice of appeal two days before the 4(a)(5) motion was filed. A court's decision that a movant has shown grounds warranting 60(b) relief is reviewed for abuse of discretion, but "we review the district court's power to entertain [a motion for] relief" in the first instance de novo. Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir. 1986).

At issue here is not Rule 60(b)(1) mistake by a party, but mistake by the court.³ It remains the law in this Circuit that "relief under Rule 60(b)(1) for judicial error other than for judicial inadvertence" is not available. Fox v. Brewer, 620 F.2d 177, 180 (8th Cir. 1980). Assuming without deciding that the mistakes alleged were the result of "judicial inadvertence," the District Court nevertheless should not have considered Lowry's motion for Rule 60(b) relief because such relief was not timely sought, notwithstanding that the motion was made within the one year specified by the Rule.A 60(b) motion also must be brought within a "reasonable time" and, "[t]o prevent its use as a substitute for appeal, we have required a Rule 60(b) motion alleging judicial inadvertence to be made within the time period allowed for appeal," that is, thirty days from the entry of judgment. Id. This certainly makes sense in this case, as in other cases alleging mistake by the court, where all relevant facts evidencing the court's errors were known as soon as the orders were entered. The argument raised in Lowry's 60(b) motion presents a theory identical to the theory that, in substance, would have...