Scola v. Boat Frances, R., Inc., 79-1169

• Decision Date: 25 March 1980
• Docket Number: No. 79-1169,79-1169
• Citation: 618 F.2d 147
• Parties: Sebastian SCOLA, Plaintiff-Appellant, v. BOAT FRANCES, R., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 147

618 F.2d 147

Sebastian SCOLA, Plaintiff-Appellant, v. BOAT FRANCES, R., INC., Defendant-Appellee.

No. 79-1169.

United States Court of Appeals, First Circuit.

Argued Sept. 12, 1979.

Decided March 25, 1980.

Joseph G. Abromovitz, Boston, Mass., with whom Latti & Flannery, Boston, Mass., was on brief, for plaintiff-appellant.

Stephen G. Viegas, Reading, Mass., for defendant-appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, DOOLING, ^* Senior District Judge.

DOOLING, District Judge.

Plaintiff has appealed from an amended judgment striking from an earlier judgment in his favor an interest award of $59,515. Plaintiff had sued defendant under the Jones Act and general maritime law for personal injuries sustained aboard defendant's vessel, and on June 11, 1976, had recovered a verdict for $245,000. Neither party had requested jury instructions respecting pre-judgment interest, no such instructions were given, and the jury's verdict made no reference to interest. Defendant moved for judgment notwithstanding the verdict and for a new trial, and both motions were denied on June 17, 1976. On July 16, 1976, a deputy clerk entered judgment that plaintiff recover of defendant $245,000 plus interest from the date of the commencement of the action to the date of judgment in the amount of $59,515. The parties agree that the clerk erred in adding pre-judgment interest since under the authorities, see Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1052-1053 (1st Cir. 1973); Newburgh Land & Dock Co. v. Texas Co., 227 F.2d 732, 735 (2d Cir. 1955), interest is discretionary in maritime personal injury cases, and the discretion must be exercised by the jury. Defendant appealed the judgment to this court on the sole ground that a consent judgment in state court barred the federal action; defendant did not assign as error the inclusion of pre-judgment interest in the judgment appealed from, and that question was not considered in this court. This court affirmed the judgment on December 30, 1976. 546 F.2d 459.

Over six months later, on July 15, 1977, defendant filed in the district court a motion for relief from the judgment pursuant to Federal Rules of Civil Procedure, Rules 60(a) and 60(b)(1) and 60(b)(6), saying that pre-judgment interest of $59,515 was improperly added to the judgment since the general jury verdict did not provide for such interest. Appellee argued, first, that the clerk's addition of interest to the jury's verdict was clerical in nature and the error arose from oversight against which relief could be granted under Rule 60(a); second, that relief could be granted under Rule 60(b)(1) in that pre- judgment interest was mistakenly and inadvertently added by the court; and, finally, that it was entitled to relief under Rule 60(b)(6) because the addition of interest was erroneous and justice required that its addition be nullified.

The district court referred the motion to a magistrate. After oral argument the magistrate, relying on Robinson v. Pocahontas, Inc., supra, concluded that the awarding of pre-judgment interest "was a clerical mistake," and he accordingly recommended that the judgment be corrected pursuant either to Rule 60(a) or Rule 60(b)(6) by deleting the amount specified for pre-judgment interest. On February 16, 1968, the district judge adopted the recommendation of the magistrate in a brief notation written at the foot of the magistrate's report, concluding, "The judgment is ordered corrected by deleting the amount for pre-judgment interest. So Ordered." The judge's order was duly copied into the docket but no alteration in the judgment was made. On March 6, 1979, the district judge signed an "Amended Judgment," the text of which reads:

Pursuant to the Order of February 16, 1978, the Judgment is hereby modified in the following manner:

Judgment for the plaintiff in the amount of $245,000.00 thereby striking the allowance of interest which had been previously awarded.

Plaintiff filed his notice of appeal from the amended judgment on March 16, 1979.

It is concluded that plaintiff's appeal from the March 6, 1979, amended judgment was a timely and proper appeal, and not a belated and ineffective effort to revive a lost right to appeal from the district court order of February 16, 1978; that the addition of pre-judgment interest to the judgment was not a "clerical" mistake within Rule 60(a) nor a "mistake" or "inadvertence" within Rule 60(b)(1) but an error of law made by the court on entering the judgment that could have been but was not brought to this court for review on the appeal from the judgment; and that no reason justifying relief from the judgment under Rule 60(b)(6) was presented to the district court by defendant within a reasonable time after the entry of the judgment.

1. Defendant contends that this court has not acquired jurisdiction of plaintiff's appeal because it is in substance an appeal from the district judge's order of February 16, 1978, and it was not taken until March 16, 1979, thirteen months after the order was entered. Conceding that the clerk failed to send either party notice of the entry of the February 16, 1978, order, as Rule 77(d) required him to do, defendant argues that defense counsel served plaintiff with papers that notified him of the order on February 9, 1979, and plaintiff's notice of appeal was not filed until March 16, 1979 more than thirty days after plaintiff learned of the order. Defendant, finally, argues that plaintiff's effort to appeal from the "Amended Judgment" entered March 6, 1979, is ineffective because that judgment was void, in that it was entered ex parte and was not entered pursuant to a motion made on notice to defendant, although it purported to deprive defendant of a substantial right by reviving plaintiff's right to appeal the February 16, 1978, order.

The defect in defendant's argument is that the February 16, 1978, order is not one that commences the running of the aggrieved party's time to appeal. The final decision that is appealable under 28 U.S.C. § 1291 (1976), the appealable "judgment" defined in Rule 54(a) of the Federal Rules of Civil Procedure, must, under Rule 58, be set forth on a separate document distinct from the jury verdict or nonjury decision by the court. As the Supreme Court has explained, the "separate document" requirement of Rule 58 is specifically addressed to fixing with certainty the point at which time commences to run against the losing party's right to appeal, Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-385, 98 S.Ct. 1117, 1119-1120, 55 L.Ed.2d 357 (1978); if plaintiff had filed a notice of appeal from the February 16, 1978, order, and defendant had not objected to the appeal as premature, this court would, indeed, have had jurisdiction to review the order, id. at 387-388, 98 S.Ct. at 1121-1122. However, the amended judgment finally entered on March 6, 1979, is the instrument intended to be the "judgment" and the date of which would normally determine the timeliness of plaintiff's appeal. Id. at 385, 98 S.Ct. at 1120. See United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973). Even this document is, in a strict view, defective; the clerk did not sign and enter it after approval by the district judge as Rule 58(2) contemplates; however, the clerk docketed it as a judgment, the district court entitled it "Amended Judgment," and it suffices to support this court's jurisdiction. United States v. Indrelunas, supra.

It is not necessary, then, to deal with defendant's other arguments. But it should be said that nothing turned on plaintiff's learning of the 1978 order in February 1979. Under Federal Appellate Rule 4(a) the time to appeal runs from the date the judgment or order is entered, it cannot be extended for more than thirty days beyond the rule time in any case, and under Rule 77(d) the failure of the clerk to give notice of the entry of a judgment or order does not affect the time to appeal or authorize the court to relieve a party for failure to appeal within the time allowed except as permitted by Rule 4(a) of the appellate rules. And while in proper cases Rule 60(b) has been taken to authorize motions to vacate and re-enter judgments for the purpose of reviving a lost right to appeal, Buckeye Cellulose Corp. v. Braggs Electric Constr. Co., 569 F.2d 1036 (8th Cir. 1978); Fidelity & Deposit Co. v. USAFORM Hail Pool, Inc., 523 F.2d 744 (5th Cir. 1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1725, 48 L.Ed.2d 194 (1976); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institute, 163 U.S.App.D.C. 140, 500 F.2d 808 (D.C. Cir. 1974); Smith v. Jackson Tool & Die, Inc., 426 F.2d 5 (5th Cir. 1970); see Braden v. University of Pittsburgh, 552 F.2d 948, 954-955 (3rd Cir. 1977), any such motion would have called for an exercise of a judicial discretion that weighed the issues of prejudice, the explanation for the delay in appealing, and the substantiality of the rights involved. See Braden v. University of Pittsburgh, supra, 552 F.2d at 954; Smith v. Jackson Tool & Die, Inc., supra, 426 F.2d at 8; cf. In re Morrow, 502 F.2d 520, 523 (5th Cir. 1974) (original judgment vacated, new judgment entered in same terms and plaintiff appealed from new judgment; Court of Appeals dismissed the appeal saying, "To permit an appeal where there is failure to notify, without more, would be opposed to the clear wording and intent of Rule 77(d)."). Notice and an opportunity to be heard on such a motion would, except perhaps in the rarest of cases, be requisite. That, however, was not the present case. Here, the district court entered a judgment on its earlier non-final order, and by so doing it commenced the running of plaintiff's time to appeal from the substance of the February 16, 1978, decision.

2. The first question on the merits of the appeal is the legal nature of the action by which the pre-judgment interest came to be included in the judgment. Defendant...