Sanders v. Clemco Industries, 88-1319

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation862 F.2d 161
Docket NumberNo. 88-1319,88-1319
PartiesTerry Wayne SANDERS, Appellant, v. CLEMCO INDUSTRIES and Ingersoll-Rand Company, Appellees.
Decision Date30 November 1988

Page 161

862 F.2d 161
12 Fed.R.Serv.3d 750
Terry Wayne SANDERS, Appellant,
CLEMCO INDUSTRIES and Ingersoll-Rand Company, Appellees.
No. 88-1319.
United States Court of Appeals,
Eighth Circuit.
Submitted Sept. 20, 1988.
Decided Nov. 30, 1988.

Page 164

John Malec, St. Louis, Mo., for appellant.

James Childres and Mark E. Lawson, St. Louis, Mo., for appellees.

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge and FAGG, Circuit Judge.

BRIGHT, Senior Circuit Judge.

This case vividly illustrates that failure to follow federal rules of civil and appellate procedure can result in the loss of valuable rights of review. In this product liability action, Terry Wayne Sanders, plaintiff, appeals from the district court's 1 orders granting summary judgment for Clemco Industries (Clemco) and Ingersoll-Rand Company (Ingersoll), defendants, and denying Sanders' motion to reconsider and set aside the summary judgment order. Sanders filed this appeal within thirty days after the district court denied his motion for reconsideration, but more than thirty days after entry of the order for summary judgment. Because Sanders made his motion for reconsideration more than ten days after the order for summary judgment, which the parties viewed as the final judgment in the case, that motion did not toll the deadline for filing a notice of appeal of the summary judgment, and his appeal of that order is untimely. 2 Therefore, Sanders may appeal only the denial of his motion for reconsideration.

As we demonstrate in our discussion below, we may construe this motion for reconsideration in either of two ways: (1) as a motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure; or (2) as a motion for relief from a judgment under Rule 60(b). 3

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If the motion arose under Rule 59(e), however, that motion was untimely and thus did not toll the running of the time for appeal under Rule 4(a)(4) of the Federal Rules of Appellate Procedure. Because Sanders brought this appeal more than thirty days after entry of judgment, we would dismiss such an appeal for want of jurisdiction. To preserve Sanders' appeal, we will construe the motion as one under Rule 60(b). Because the district court did not abuse its discretion in denying the motion for reconsideration as a motion for relief under Rule 60(b), we affirm.


On September 30, 1978, Sanders sustained injury while using an air respirator manufactured by Clemco and a compressor built by Ingersoll. He filed a product liability action against the manufacturers in the circuit court in the City of St. Louis on September 29, 1983, just one day before the running of the Missouri statute of limitations. 4 Because Sanders inadvertently asked the clerk's office to hold the issuance of summons, he did not serve process on Ingersoll until January 18, 1984. After Ingersoll removed the case to federal court, Sanders voluntarily dismissed the action without prejudice on October 15, 1984, claiming he could not locate Clemco to serve it with process. 5

Several months later, Sanders verified Clemco's new address and decided to try again. 6 On August 13, 1985, he filed a new complaint on the same cause of action in the United States District Court for the Eastern District of Missouri. This time, Sanders quickly served Clemco and Ingersoll. Clemco eventually filed a motion for summary judgment, claiming that the Missouri statute of limitations barred the action because Sanders failed to exercise due diligence in serving process after filing the initial action. 7 Rather than ruling on the

Page 166

motion, the district court dismissed the complaint sua sponte because it failed to state Sanders' citizenship and the defendants' principal places of business for diversity purposes. The district court then denied Sanders' motion to amend the judgment to allow him to amend his complaint.

On an initial appeal, this court reversed and remanded to the district court with instructions to allow Sanders to amend his complaint to cure the jurisdictional defect. This court also instructed the district court to make further findings of fact and conclusions of law on the statute of limitations issue. Sanders v. Clemco Indus., 823 F.2d 214, 217-18 (8th Cir.1987).

After remand, Ingersoll and Clemco filed separate motions for summary judgment based on the statute of limitations defense. On October 27, 1987, Sanders filed a motion to stay action on the summary judgment motions to allow further discovery on the statute of limitations issue. The district court then granted the motions for summary judgment in a unitary Memorandum and Order dated November 6, 1987. On December 7, 1987, within thirty days of the summary judgment order, 8 Sanders filed a motion "For Reconsideration and To Set Aside Summary Judgment." Sanders did not specify under which rule of civil procedure he filed this motion. The district court denied the motion for reconsideration on January 15, 1988, without further opinion. Sanders filed this appeal thirty days later.


A. Appellate Jurisdiction--Absence of Judgment on Separate Document

In reviewing the record in this case after oral argument, this court discovered that the district court filed only a Memorandum and Order granting summary judgment for Clemco and Ingersoll. The district court never entered a final judgment on a separate document as required by Rule 58 of the Federal Rules of Civil Procedure, and the clerk of the district court did not make an entry of a final judgment on the docket sheet as required by Rule 79(a), 9 but noted the filing of the Memorandum and Order on November 6, 1987. Thus, at first blush, this appeal appears premature because it precedes the filing of a final judgment. See St. Mary's Health Center v. Bowen, 821 F.2d 493, 496 (8th Cir.1987). The separate-document requirement, however, "is not jurisdictional and may be waived by the parties." Moore v. Warwick Pub. School Dist. No. 29, 794 F.2d 322, 323 n. 1 (8th Cir.1986) (citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam)).

This court sua sponte requested the parties to file supplemental briefs on the question of whether we should deem the appeal premature because of the absence of a separate judgment or whether the parties, particularly the appellant, have waived that requirement. After consideration of these briefs, and of the record in this and the earlier appeal in this case, we determine that the parties have waived the separate-document requirement.

We reach this conclusion for several reasons. First, neither party, before filing supplemental briefs, has raised the question of noncompliance with Rule 58. Instead, the parties have filed pleadings and briefed this appeal as if the Memorandum and Order dated November 6, 1987, constituted a final judgment. Second, Sanders labeled his motion here in question as one "For Reconsideration and To Set Aside Summary Judgment" and referred to the district court's action as "the court's granting of summary judgment." Third, the trial court denied the motion "To Set Aside Summary Judgment," apparently considering the prior Memorandum and Order as a final judgment. Finally, in an earlier appeal

Page 167

in this case, the parties also did not raise the district court's failure to enter a separate judgment dismissing Sanders' claim for want of jurisdiction, and we entertained the appeal despite the lack of a separate document. See Sanders v. Clemco Indus., 823 F.2d 214 (8th Cir.1987).

All of the above factors indicate that the parties waived the separate-document requirement during the course of this litigation, both in the prior appeal and in this appeal. See Hall v. Bowen, 830 F.2d 906, 911 n. 7 (8th Cir.1987). In light of the action of the parties in ignoring the separate-document requirement in this case and regarding the Memorandum and Order as a final judgment, this panel too must consider this appeal in a similar manner as the prior appeal, and entertain this appeal as one in which the separate-document requirement of Rule 58 has been effectively waived. 10

Although we determine that the parties waived the separate-document requirement in this case, we stress that such a determination is not to be made routinely. Waiver may be entirely inappropriate, and the separate-document requirement enforced, when the right to appeal otherwise would be lost. As Justice Blackmun has noted:

[T]he separate-document requirement must be applied mechanically in order to protect a party's right of appeal, although parties may waive this requirement in order to maintain appellate jurisdiction of their case. The fundamental error of the Court of Appeals in this case, therefore, was to employ [the appellant's] purported waiver to defeat its appeal.

Amoco Oil Co. v. Jim Heiling Oil & Gas, Inc., 479 U.S. 966, 107 S.Ct. 468, 471, 93 L.Ed.2d 413 (1986) (Blackmun, J., dissenting from denial of certiorari) (citation omitted); see also Bankers Trust, 435 U.S. at 385-86, 98 S.Ct. at 1120-21 (finding waiver to preserve appellate jurisdiction); United States v. Indrelunas, 411 U.S. 216, 221-22, 93 S.Ct. 1562, 1564-65, 36 L.Ed.2d 202 (1973) (requiring separate-document to protect right to appeal despite conduct indicating waiver).

Unlike the Sixth Circuit in Amoco, we do not deprive Sanders of his right to appeal by finding a waiver in this case. Rather, considering the Memorandum and Order of November 6, 1987, as a final judgment, we entertain his appeal to the extent that we can, given the underlying documents and procedural history. We recognize that if we remanded for the entry of a separate judgment, Sanders could appeal on the merits of the case, not merely on the question of whether the trial judge abused his discretion in denying reconsideration of his order. As we have noted, however, when parties have proceeded in the district court and in this court on...

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