Lusted v. San Antonio Independent School Dist.

• Decision Date: 17 September 1984
• Docket Number: 83-1386,Nos. 83-1152,s. 83-1152
• Parties: 35 Empl. Prac. Dec. P 34,662, 40 Fed.R.Serv.2d 50, 19 Ed. Law Rep. 851 Mary Judith LUSTED, Plaintiff-Appellant, v. SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee. Mary Judith LUSTED, Plaintiff-Appellee Cross-Appellant, v. SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 817

741 F.2d 817

35 Empl. Prac. Dec. P 34,662, 40 Fed.R.Serv.2d 50,

19 Ed. Law Rep. 851

Mary Judith LUSTED, Plaintiff-Appellant, v. SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellee.

Mary Judith LUSTED, Plaintiff-Appellee Cross-Appellant, v. SAN ANTONIO INDEPENDENT SCHOOL DISTRICT, Defendant-Appellant

Cross-Appellee.

Nos. 83-1152, 83-1386.

United States Court of Appeals, Fifth Circuit.

Sept. 17, 1984.

Law Offices of Luis M. Segura, Inc., Luis M. Segura, Glen D. Mangum, San Antonio, Tex., for Mary Judith Lusted.

Nicholas & Barrera, Ron H. Mata, Anthony Nicholas, Joseph E. Scuro, Jr., San Antonio, Tex., for San Antonio Independent School Dist.

Appeals from the United States District Court for the Western District of Texas.

Before THORNBERRY, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

Mary Judith Lusted, an elementary school principal employed by the San Antonio Independent School District, brought this action against the School District alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., and the Equal Pay Act, 29 U.S.C. Sec. 206(d). Following a two-day bench trial, the district court issued a Memorandum Opinion and Order stating that judgment would be entered for Lusted. The court later entered judgment for Lusted and awarded her back pay and interest totaling $21,927.18. Both parties have appealed. Lusted contends that the district court erred in failing to grant her motion for class certification, and that the court awarded insufficient back pay. The Because the School District's appeal was not timely filed, we must dismiss it for lack of appellate jurisdiction. We consider Lusted's appeal on its merits. We affirm the district court's denial of Lusted's motion for class certification, but vacate and remand the district court's judgment for findings and conclusions respecting Lusted's entitlement to Title VII back pay for the period of July 25, 1975 to February 15, 1977.

School District contests the judgment and award in favor of Lusted. Both parties also challenge this Court's jurisdiction to entertain the opposing party's appeal.

I. APPELLATE JURISDICTION

Rule 4(a)(1) of the Federal Rules of Appellate Procedure requires that a notice of appeal be filed "within 30 days after the date of entry of the judgment or order appealed from." This time limit is "mandatory and jurisdictional." United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 288, 4 L.Ed.2d 259 (1960). The district court's judgment in this suit was filed and entered on the docket on February 10, 1983. The School District filed its notice of appeal on May 16, 1983, ninety-five days later. Consequently, the School District's appeal "must fail unless [it] falls within some exception to the rule." Alvestad v. Monsanto Co., 671 F.2d 908, 910 (5th Cir.), cert. denied, 459 U.S. 1070, 103 S.Ct. 489, 74 L.Ed.2d 632 (1982).

Federal Rule of Appellate Procedure 4(a)(4) provides in part that the filing of a timely motion under Fed.R.Civ.P. 59(e) to alter or amend judgment tolls the period for filing a notice of appeal until the entry of an order granting or denying such motion.

The School District contends that either Lusted's February 14, 1983 motion for entry of judgment or her February 23, 1983 motion to alter or amend judgment, or both, fell within this exception to the thirty-day appeal period, and tolled the running of the period until May 10, 1983, when the district court denied Lusted's February 23 motion. We disagree. ¹

Lusted's February 23 motion was filed and served thirteen days after the district court entered its final judgment. Federal Rule of Civil Procedure 59(e) provides that "[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment." Because February 20, the tenth day after judgment, fell on a Sunday, and a legal holiday fell on February 21, the allowable period for serving Lusted's motion was extended until the end of "the next day which [was] not a Saturday, a Sunday, or a legal holiday." Fed.R.Civ.P. 6(a). That day was Tuesday, February 22, and thus Lusted's motion to alter or amend judgment was made one day late. ² In Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 267, 98 S.Ct. 556, 562, 54 L.Ed.2d 521 (1978), the Court emphasized that the period for filing a notice of appeal is tolled only upon the filing of a timely motion as specified in Rule 4(a)(4). "An untimely request ... does not have the same effect." Id. Because Lusted's February 23 motion was not timely, it did not toll the thirty-day period. ³ Alvestad at 910.

Nor did Lusted's motion for entry of judgment filed on February 14 toll the running of the thirty-day period. The certificate of service to this motion reflects that it was mailed on February 11. The School District contends that the motion should be treated as a Rule 59(e) motion to alter or amend judgment, although it was not entitled as such. The School District cites several decisions construing various requests as motions to alter or amend judgment although they were labeled otherwise. See e.g., Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962) (motion "to vacate judgment"); Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979) (motion "to reconsider and vacate"); Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 890 (8th Cir.1978) (motion "to reconsider and deny a motion for summary judgment"); Spurgeon v. Delta Steamship Lines, Inc., 387 F.2d 358, 359 (2d Cir.1967) (per curiam) (motion "to resettle judgment"). Yet, the motions considered in those decisions sought specific relief from or changes in an existing final order or judgment. Lusted's motion for entry of judgment sought precisely what it indicated: a final judgment from the district court. Lusted contends, and the School District does not dispute, that its motion was simply a request to the district court to enter judgment in accordance with a proposed judgment submitted to the court by Lusted, ⁴ and that her counsel drafted and mailed the motion without knowledge that the district court, the day previous, had already entered judgment in this case.

We do not believe that Lusted's February 14 motion could reasonably be interpreted as a mislabeled motion to alter or amend judgment. Her motion, therefore, did not toll the period for filing notice of appeal. ⁵ We must dismiss the School District's appeal as untimely, and we consider Lusted's appeal only.

II. CLASS CERTIFICATION MOTION

On December 30, 1982, six months after the conclusion of trial and almost two months after the district court had issued its Memorandum Opinion and Order in favor of Lusted, she for the first time moved for class certification pursuant to Fed.R.Civ.P. 23. The district court denied the motion sua sponte on the basis that Lusted had failed to satisfy the commonality requirement of Rule 23(a)(2). Because Lusted failed to file a proper class action complaint or seek class relief at any time before the close of trial, we affirm the denial of the certification motion, and do not reach its merits.

Although Title VII suits "are often by their very nature class suits, involving classwide wrongs," East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 405, 97 S.Ct. 1891, 1898, 52 L.Ed.2d 453 (1977), it is well settled that in such Lusted's suit was brought as an individual action. Her complaint neither showed nor alleged that the suit met the prerequisites of a class action as specified by Rule 23, see Danner at 164 & n. 10, and the complaint prayed for relief solely on Lusted's behalf. See Washington at 947. ⁶ Lusted's counsel made no attempt to amend her complaint to state a class action. See Nance at 722. No effort was made to assert a class claim until after the trial on the merits was completed and the district court had issued its Memorandum Opinion and Order. Nor is there any indication in the record that this case was tried implicitly as a class action, and "that all parties to the action knew of its class nature and acquiesced in it." ⁷ Bing v. Roadway Express, Inc., 485 F.2d 441, 446 (5th Cir.1973). Although the proof presented by Lusted at trial tended to show that other female employees of the School District were victims of sex discrimination, that evidence, standing alone, was not sufficient to put either the School District or the district court on notice that Lusted's suit was a class action. See Danner at 164; Washington at 947. The record contains no mention of any class action until the filing of Lusted's eleventh-hour motion for class certification.

                suits, "class action relief must be predicated upon a proper class action complaint satisfying all the requirements of Rule 23."   Danner v. Phillips Petroleum Company, 447 F.2d 159, 164 n. 10 (5th Cir.1971).   Accord Rodriguez v. East Texas Motor Freight, 505 F.2d 40, 50 & n. 11 (5th Cir.1974), vacated on other grounds, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977);  Nance v. Union Carbide Corp. Consumer Prods.  Div., 540 F.2d 718, 723-25 (4th Cir.1976), vacated on other grounds, 431 U.S. 952, 97 S.Ct. 2671, 53 L.Ed.2d 268 (1977) (following Fifth Circuit rule);  Washington v. Safeway Corporation, 467 F.2d 945, 947 (10th Cir.1972) (per curiam).  No such complaint was filed in this case
                

Lusted's failure to seek class relief in her complaint, or at any time before or during trial, effectively " 'precluded any class certification in this case.' " Nance at 725 (citation omitted). Her belated certification motion was too little and too late. This, of course, does not mean that other female employees of the School District may not seek judicial redress for the same character of wrongs in the future.

"But if they decide to bring a class action, it must be brought and identified as such, and the predicate for class action...