Perry v. Sheet Metal Workers' Local No. 73 Pension

Citation585 F.3d 358
Decision Date27 October 2009
Docket NumberNo. 08-2024.,08-2024.
PartiesDonald C. PERRY and William Wilk, Plaintiffs-Appellants, v. SHEET METAL WORKERS' LOCAL NO. 73 PENSION FUND, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Carol Nguyen (argued), Despres, Schwartz & Geoghegan, Chicago, IL, for Plaintiffs-Appellants.

Michael I. Richardson (argued), Franczek Sullivan, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and WILLIAMS and SYKES, Circuit Judges.

WILLIAMS, Circuit Judge.

Donald Perry and William Wilk maintain they should have received pension credit from the Sheet Metal Workers' Local No. 73 Pension Fund for the time they spent as instructors at a Chicago trade school. They emphasize that James Slovey, who worked at the same school at the same time they did, received the credit they seek. We affirm the grant of summary judgment in favor of the pension fund, however, as the plan language provides for pension credit only if an employer has made contributions to the fund on an employee's behalf. Contributions were made to the pension fund on behalf of Slovey, who served as the Apprentice Coordinator, but not on behalf of instructors Perry and Wilk. The pension fund therefore complied with the terms of the plan when it declined to award Perry and Wilk the pension credit they seek. This case also gives us occasion to remind litigants that if the district court does not enter a proper Rule 58 judgment, the parties should ask the district court to do so.

I. BACKGROUND

Donald Perry and William Wilk are participants in the Sheet Metal Workers' Local No. 73 Pension Fund ("Pension Fund"). From 1984 through October 1993, both were instructors in an apprenticeship training program at the City of Chicago's Washburne Trade School. Neither received pension credit from the Pension Fund for time spent as an instructor at Washburne.

Perry wrote a letter to the Pension Fund in November 2005 asking for 8.25 years of pension credit for his time at Washburne. The Pension Fund denied his request. Perry then wrote a letter appealing the decision. He pointed out that James Slovey had also worked at Washburne at the same time and that Slovey received pension credit for his time at Washburne.

The Pension Fund's trustees discussed Perry's appeal at a July 2006 meeting. As the Pension Fund explained in a letter to Perry, it denied his appeal because Washburne Trade School was his employer for the work in question. Washburne was never a "Contributing Employer" under the terms of the plan, nor had the plan been amended to include Washburne retroactively as a Contributing Employer. The letter further explained that Slovey, in contrast, was employed as the Apprentice Coordinator and had received credit because of contributions made by the Sheet Metal Workers' Local 73 Joint Apprenticeship and Journeymen's Training Fund (not to be confused with the defendant Pension Fund, a separate entity), which was a "Contributing Employer" under the plan's terms. The letter also stated that the Pension Fund would provide Perry, upon request and free of charge, access to and copies of all documents, records, and other information relevant to his claim. Perry did not request any documents. Wilk wrote a letter similar to Perry's initial letter and also did not receive credit for his years at Washburne. The Pension Fund has no record of responding to the letter or of any further correspondence from Wilk.

After Perry's appeal to the Pension Fund was denied, Perry and Wilk filed suit in federal court under ERISA, alleging they had been denied benefits in violation of 29 U.S.C. § 1132(a)(1)(B). The Pension Fund moved for summary judgment and attached an affidavit from Joseph Ohm, the Pension Fund's administrator. Ohm stated in the affidavit that the Apprentice Fund made contributions to the Pension Fund on Slovey's behalf for his service at Washburne pursuant to a participation agreement between the Apprentice Fund and the Pension Fund. Ohm did not attach a copy of the actual participation agreement, nor is one in the record. Ohm also stated in the affidavit that the Pension Fund had no record of any participation agreement or other agreement that obligated the Apprentice Fund to make contributions to the Pension Fund on behalf of Perry or Wilk for their service at Washburne.

The district court granted summary judgment to the Pension Fund in a sixteen-page memorandum opinion entered on March 24, 2008. The district court docket also contains minute entries on March 24 and 26, 2008, but there is no judgment on form AO450, the form often used to ensure a proper judgment is in place that satisfies Federal Rule of Civil Procedure 58. On April 24, 2008, Perry and Wilk filed their notice of appeal, which stated they were appealing from "the Judgment and Memorandum Opinion and Order granting Defendant's motion for summary judgment and denying Plaintiffs' motion for summary judgment entered on March 24, 2008."

II. ANALYSIS
A. Jurisdiction

The threshold issue in this case, as in any case, is whether we have jurisdiction. There is no question that this appeal is from a final decision. See 28 U.S.C. § 1291. Instead, the jurisdictional question here centers around the timeliness of the notice of appeal. With exceptions not relevant in this case, the Federal Rules of Appellate Procedure provide that a notice of appeal in a civil case must be filed with the district court clerk "within 30 days after the judgment or order appealed from is entered." Fed. R.App. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a). Here, the district court's memorandum opinion granting summary judgment to the Pension Fund was entered on March 24, 2008. Because Perry and Wilk did not file their notice of appeal until April 24, 2008, more than thirty days after the entry of the memorandum opinion, the Pension Fund argues the notice was filed too late and that we should therefore dismiss the case. See Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (timely filing of a notice of appeal in a civil case is a jurisdictional requirement).

But the analysis is not that simple. As we said, Appellate Rule 4(a)(1)(A) measures the time to file a notice of appeal from the date when "the judgment or order appealed from is entered." The Rules elaborate on entry of a judgment or order in Appellate Rule 4(a)(7), which contains different requirements depending on whether Federal Rule of Civil Procedure 58(a) mandates a separate document. The grant of a motion for summary judgment is not one of the exceptions to the separate document requirement listed in Rule 58(a), so a separate document was required in this case to have a proper Rule 58 judgment. Appellate Rule 4(a)(7)(a)(ii) provides that when a separate document is required, the judgment is entered for Rule 4 purposes when the judgment is entered in the civil docket and the earlier of these events occurs:

• the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

A question, then, is whether the judgment was set forth on a "separate document." The March 24 sixteen-page memorandum opinion resolved all claims and detailed the grant of summary judgment in the Fund's favor, but it does not set forth the judgment on a separate document and so does not satisfy the "separate document" requirement. There are two other potentially relevant events, a minute entry on March 241 and another minute entry on March 26.2 We have suggested before that some minute entries might satisfy the "separate document" requirement. See Nocula v. UGS Corp., 520 F.3d 719, 724 (7th Cir.2008); Am. Nat'l Bank & Trust Co. of Chi. v. Sec'y of Hous. & Urban Dev., 946 F.2d 1286, 1289 (7th Cir.1991); cf. Rush Univ. Med. Ctr. v. Leavitt, 535 F.3d 735, 737 (7th Cir.2008). But the Fund expressly disavowed any argument that a minute entry constituted the judgment on a separate document that started the running of the notice of appeal clock, so we will not consider such an argument here. (And, of course, there is more to Rule 58 than the separate document rule in subpart (a). See, e.g., Fed.R.Civ.P. 58(b)(1) (stating, "the clerk must, without awaiting the court's direction, promptly prepare, sign, and enter the judgment" (emphasis added) when, among other things, "the court denies all relief.")).

When a judgment is not set forth on a separate document even though Rule 58(a) requires that it be, Appellate Rule 4(a)(7)(ii) says the judgment is treated as entered 150 days after its entry on the civil docket. That means that the time to file a notice of appeal starts to run then. See Fed. R.App. P. 4(a)(1)(A); see also Employers Ins. of Wausau v. Titan Int'l, Inc., 400 F.3d 486, 488 (7th Cir.2005). The 2002 Advisory Committee notes to the rule explain that prior to its amendment, there had been a circuit split on the following question: "When a judgment or order is required to be set forth on a separate document under Fed.R.Civ.P. 58 but is not, does the time to appeal the judgment or order—or the time to bring post-judgment motions, such as a motion for a new trial under Fed.R.Civ.P. 59—ever begin to run?" Rules 4(a)(7)(A) and Federal Rule of Civil Procedure 58 were amended to impose a time cap:

Under the amendments, a judgment or order is generally treated as entered when it is entered in the civil docket pursuant to Fed.R.Civ.P. 79(a). There is one exception: When Fed.R.Civ.P. 58(a)(1) requires the judgment or order to be set forth on a separate document, that judgment or order is not treated as entered until it is set forth on a separate document (in addition to being entered in the civil docket) or until the expiration of 150 days after its entry in the civil docket, whichever occurs first. This cap will ensure that parties will not be given forever to appeal (or to bring a...

To continue reading

Request your trial
17 cases
  • Young v. Verizon's Bell Atlantic Cash Balance Plan
    • United States
    • U.S. District Court — Northern District of Illinois
    • November 2, 2009
    ...itself...."); Senkier v. Hartford Life & Acc. Ins. Co., 948 F.2d 1050, 1051 (7th Cir.1991); cf. Perry v. Sheet Metal Workers' Local No. 73 Pension Fund, 585 F.3d 358, 363-64 (7th Cir.2009) (plan governs absent contradictory SMM or SPD). Plaintiff correctly points out that Plan communication......
  • United States v. Palmer, 15-3006
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • April 14, 2017
    ...of the judgment, a procedural action authorized by Federal Rule of Civil Procedure 58(d). See Perry v. Sheet Metal Workers' Local No. 73 Pension Fund , 585 F.3d 358, 362 (7th Cir. 2009) ; cf. United States v. Johnson , 254 F.3d 279, 283-85 (D.C. Cir. 2001). As such, appellant's new motion n......
  • Siebert v. Cent. States Se. & Sw. Areas Health & Welfare Fund
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 21, 2020
    ...but that would not mean that it was bound to repeat its error with others who came along." Perry v. Sheet Metal Workers’ Local No. 73 Pension Fund , 585 F.3d 358, 363-64 (7th Cir. 2009). That is essentially what the Trustees said happened in this case, and without other indicia that the dec......
  • Carter v. Hodge
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 8, 2013
    ...Cir.2000); Yourish v. California Amplifier, 191 F.3d 983, 987–88 (9th Cir.1999). No matter; as in Perry v. Sheet Metal Workers' Local No. 73 Pension Fund, 585 F.3d 358, 361–62 (7th Cir.2009), the appellee has conceded in his jurisdictional memorandum that no Rule 58(a) judgment was entered.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT