Smith v. Hudson, 77-1240

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before WEICK, LIVELY and KEITH; WEICK
• Citation: 600 F.2d 60
• Parties: William Butler SMITH et al., Plaintiffs-Appellants, v. Leman HUDSON et al., Defendants-Appellees.
• Docket Number: No. 77-1240,77-1240
• Decision Date: 21 June 1979

Page 60

600 F.2d 60 William Butler SMITH et al., Plaintiffs-Appellants,
v.
Leman HUDSON et al., Defendants-Appellees. No. 77-1240. United States Court of Appeals,
Sixth Circuit. Argued April 10, 1979.
Decided June 21, 1979.

Page 61

J. Stanley Rogers, Rogers & Parsons, Michael Vaughn, Manchester, Tenn., for plaintiffs-appellants.

Michael D. Galligan, McMinnville, Tenn., W. Henry Haile, Nashville, Tenn., for defendants-appellees.

Before WEICK, LIVELY and KEITH, Circuit Judges.

WEICK, Circuit Judge.

This is an appeal from an order of the District Court granting the defendants' motion for summary judgment. The plaintiffs are four bus drivers formerly employed by the defendants. The defendants are the members of the Warren County, Tennessee school board and the school system's transportation supervisor. The plaintiffs claim that their employment was terminated, or they were not rehired, in retaliation for their continued prosecution of a lawsuit in state court in an effort to obtain higher wages. The plaintiffs contend that the defendants' action violated their first amendment rights.

The principal issue in this appeal is whether the District Court erred in granting summary judgment under Fed.R.Civ.P. 56 where the plaintiffs offered no timely response to the defendants' motion. In addition, the defendants assert that the plaintiffs' notice of appeal was not timely filed and that this Court lacks jurisdiction over the appeal. Addressing the jurisdictional issue first, we are of the opinion that the plaintiffs' notice of appeal was timely filed. On the Rule 56 question, we are of the opinion that the District Court should have decided this case on its merits and ought not to have granted summary judgment.

Page 62

I

The defendants claim that this Court's jurisdiction was not properly invoked because the plaintiffs' notice of appeal was not filed in a timely manner under Fed.R.App.P. 4(a). Lindsey v. Perini, 409 F.2d 1341 (6th Cir. 1969) (per curiam). Rule 4(a) requires a notice of appeal to be filed within 30 days of the entry of judgment. This time period ceases to run, however, if any one of several postjudgment motions is filed with the District Court. This list includes a motion under Fed.R.Civ.P. 59(e) seeking to alter or amend a judgment. If a Rule 59(e) motion is filed, a new 30 days filing period commences to run once the District Court enters an order granting or denying the motion. Fed.R.App.P. 4(a); See amended Fed.R.App.P. 4(a)(4), 47 U.S.L.W. 4486 (May 1, 1979).

The pertinent docket entries in this case are as follows:

Dec. 27 Defendants' motion for summary judgment, affidavits in support filed. Service by counsel.

1977

Jan. 11 Memorandum Opinion and Order, Neese, D. J., granting defendants' motion for summary judgment filed. Service by clerk.

Jan. 14 Plaintiffs' motion to reconsider and vacate memorandum opinion and order filed. Service by counsel.

Jan. 25 Memorandum Opinion and Order, Neese, D. J., filed. The application of the plaintiffs for an alteration or amendment of, or relief from, the judgment herein of January 17, 1977 is overruled. Service by Clerk.

Feb. 24 Notice of appeal by plaintiffs filed. Service by Counsel.

The Memorandum Opinion contained no order. It treated defendants' motion as one filed under Rule 59(e) and ended with the following statement: "Judgment will enter that plaintiffs take nothing from the defendants". The defendants concede that if the motion was one to alter or amend a judgment under Rule 59(e), then the filing of the notice of appeal was timely because it was within 30 days of the filing of the District Court's order denying relief under Rule 59(e). The defendants argue that the plaintiffs' motion could not properly have been treated under Rule 59(e), however, because it was made prior to the entry of judgment, and thus could not have been a motion "to alter or amend a judgment." This argument in our opinion lacks merit.

First, we recognize that Rule 59(e) contemplates that motions will normally be made following the entry of judgment. The Rule provides:

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.

It is not unusual, however, for a putative Rule 59(e) motion to predate the formal entry of judgment. This is due to the fact that Fed.R.Civ.P. 58 requires that judgments be entered in a document that is separate from the Court's memorandum opinion. Thus in Jetero Const. Co., Inc. v. South Memphis Lumber Co., 531 F.2d 1348, 1351 (6th Cir. 1976), we held that it was proper for the District Court to entertain a motion to alter or amend a judgment under Rule 59(e) even though it was filed prior to the actual entry of judgment. Thus in this case the plaintiffs' motion cannot be read out of Rule 59(e) solely because it was prematurely filed.

Second, although denominated as a "motion to reconsider and vacate," we believe that the District Court did not abuse its discretion in treating the motion, Inter alia, as one under Rule 59(e). The Court correctly observed that the Federal Rules do not contemplate motions to "reconsider and vacate." Other courts have held, however, and we agree, that a motion which asks a court to vacate and reconsider, or even to reverse its prior holding, may properly be treated under Rule 59(e) as a motion to alter or amend a judgment. See, e. g., Sonneblick-Goldman Corp. v. Nowalk, 420 F.2d 858 (3d Cir. 1970); Gainey v. Brotherhood of Ry. & Steamship Clerks, etc., 303 F.2d 716 (3d Cir. 1962); Steward v. Atlantic Refining Co., 235 F.2d 570, 572 (3d Cir. 1956). But see Erickson Tool Co. v. Balas

Page 63

Collet Co., 277 F.Supp. 226, 234 (N.D.Ohio 1967), Aff'd on other grounds, 404 F.2d 35 (6th Cir. 1968).

We are of the opinion that the better practice would have been for the District Court to have entered judgment with the filing of its opinion. See Jetero Const., supra, 531 F.2d at 1351. We in no way condone the sloppy practice of counsel for plaintiffs in this case. ¹ We simply hold that the errors of counsel were not of a type that would require us to visit the consequences of those errors upon his clients. Cf. Jackson v. TVA, 595 F.2d 1120 (6th Cir. 1979) (per curiam) (ambiguities in the procedural posture of a case should be resolved in favor of finding jurisdiction).

II

The plaintiffs contend that the District Court erred in granting summary judgment under Fed.R.Civ.P. 56(c) because the discovery materials filed in the District Court show the existence of a genuine dispute concerning a material issue fact. In response, the defendants offer two arguments in support of the District Court's decision. First, they maintain that the District Court was not obligated to search the entire record in this case when, (1) the materials offered in support of the motion showed that no disputed factual issue was present, and when (2) the plaintiffs offered no timely response in opposition to the motion. Second, the defendants contend that even if one examines the entire record, there is no genuine dispute requiring a trial on the merits. We disagree with both of the defendants' arguments.

A

Rule 56(c) governs the disposition of motions for summary judgment. It provides:

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact...