Sutherland v. ITT Continental Baking Co., Inc., 82-1685
| Decision Date | 29 June 1983 |
| Docket Number | No. 82-1685,82-1685 |
| Citation | 710 F.2d 473 |
| Parties | 32 Empl. Prac. Dec. P 33,706 Melvin SUTHERLAND, Appellant, v. ITT CONTINENTAL BAKING CO., INC., Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Leonard Singer, Kansas City, Mo., for ITT Continental Baking Co.; Watson, Ess, Marshall & Enggas, Kansas City, Mo., of counsel.
Doris Gregory Black, St. Louis, Mo., for appellant.
Before LAY, Chief Judge, and McMILLIAN and JOHN R. GIBSON, Circuit Judges.
This is an appeal from the order of the district court, the Honorable H. Kenneth Wangelin presiding, denying Sutherland's motion to reinstate his complaint on the court's docket, after the action had been dismissed with prejudice. On this appeal Sutherland treats his motion as having been filed pursuant to rule 60(b) of the Federal Rules of Civil Procedure. Sutherland contends that the district court abused its discretion in denying his motion. For the reasons set out below, we affirm the judgment of dismissal.
Sutherland filed an action pursuant to 42 U.S.C. Secs. 1981 & 2000e (1976) on October 29, 1980, against his employer, ITT Continental Baking Company. He complained that Continental Baking had racially discriminated against him because it did not promote him to a particular position in 1977. The case was twice set for trial and did not proceed; it was set for trial a third time on January 4, 1982, and neither Sutherland nor his counsel, Doris G. Black, appeared. The district court dismissed the action with prejudice on the same date. Thereafter, on February 2, 1982, Sutherland filed a motion to reinstate the case on the trial docket. The district court found that the reasons given by attorney Black for her failure to appear could not support reinstatement of the cause. The court denied the motion on May 19, 1982. Sutherland filed a notice of appeal from both the May 19 denial of the motion and the January 4 dismissal with prejudice.
Initially, we hold that we lack jurisdiction to review the January 4 dismissal because the appeal was not filed within 30 days of that order. Fed.R.App.P. 4(a); see Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978) (). Some post-trial motions, e.g., Fed.R.Civ.P. 50(b), 52(b), 59(a) & (e), toll the running of the time for appeal until the disposition of the motion. See Fed.R.App.P. 4(a)(4). However, Sutherland's motion to reinstate cannot be considered under any of these rules because such motions must be filed within 10 days of the judgment and his motion was not filed until almost a month after the judgment was entered.
In his briefs and argument before this court, Sutherland treats his motion to reinstate as having been filed pursuant to rule 60(b) of the Federal Rules of Civil Procedure, even though the motion was not so designated in the district court. A rule 60(b) motion for relief from a final judgment does not contain the 10-day time limit and may be filed up to one year after the judgment if within a reasonable time. Therefore, Sutherland's rule 60(b) motion was timely. However, rule 60(b) motions do not toll the running of the time for appeal from the original judgment and an appeal from a rule 60(b) decision does not bring the original judgment up for review. Browder, 434 U.S. at 263 n. 7, 98 S.Ct. at 560 n. 7; Fox v. Brewer, 620 F.2d 177, 179-80 (8th Cir.1980); Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir.1975). Thus, if we treat Sutherland's motion to reinstate as a rule 60(b) motion, we have only the district court's denial of that motion before us for review. Our review is limited to whether the district court abused its discretion in denying relief from its original judgment. Browder, 434 U.S. at 263 n. 7, 98 S.Ct. at 560 n. 7; Lang v. Wyrick, 590 F.2d 257, 259 (8th Cir.1978) (per curiam); Cline v. Hoogland, 518 F.2d at 778. 1 The district court found that the reasons in support of reinstatement were insufficient, and from our review of the record, we cannot say that the district court abused its discretion.
Sutherland's attorney, Doris Black, filed an affidavit in support of the reinstatement motion alleging that she had been incapacitated and unable to practice law from August 20 until October 1, 1981. The record indicates that the court mailed the notice of the January 4 trial setting on August 25, 1981. Black further alleged that the only reason she did not appear was because she "did not know of the January 4, 1982 setting." An affidavit was also filed by Peggy Hardge, an attorney with whom Black shares office space. Hardge swore that during Black's absence from the office she personally opened all mail and recorded the dates because they were using temporary secretarial help at the time. Hardge further swore that she received no written notice of a court date and no oral notification of a court date from the defendant's counsel. An affidavit filed by the plaintiff, Melvin Sutherland, stated that the action was meritorious.
The district court found, notwithstanding these affidavits, that Black had or should have had notice of the trial date. At the very least, Black had constructive notice and an obligation to inquire into the status of this case. First, there is a presumption that a letter transmitted by mail was received by the addressee. Arkansas Motor Coaches v. Commissioner, 198 F.2d 189, 191 (8th Cir.1952). Although Hardge asserted that she received no mailed notice, the district court found inconsistencies in her affidavit that detracted from its efficacy. Also, even though Black swears she was totally incapacitated during this period, she was in St. Louis during this period and her signature appears on plaintiff's first set of interrogatories dated September 11, 1981.
Second, counsel for Continental Baking, Brian J. Finucane, filed an affidavit stating that he had discussed the January 4 trial setting with Peggy Hardge. He swore that he told Hardge that he was interested in negotiating a settlement before having to prepare again for trial and Hardge told him she would discuss the matter with Black. The district court found that Hardge's affidavit was inconsistent on this crucial fact of oral notification and was therefore not persuasive.
Third, included in the court's August 25, 1981, notice of the trial setting was a pretrial order. This order required the parties to meet and prepare a joint stipulation, and to deliver to opposing counsel and the court lists of proposed witnesses, requested jury instructions, and trial briefs. It is uncontested that eight days prior to trial counsel for Continental Baking mailed Black a copy of his compliance with the pretrial order. 2 Black does not deny receiving this pretrial compliance. The district court observed that an exchange of such information about 10 days prior to trial is standard procedure in the eastern district and that Black is an experienced attorney familiar with the court's pretrial procedures. Receipt of defendant's pretrial compliance should have alerted Black that trial was imminent. The district court concluded that at the very least Black was obligated to inquire about the status of the case and she did not do so. 3
Fourth, the district court concluded that dismissal of the action and the refusal to reinstate it did not unjustly penalize Sutherland. Although dismissal of an action with prejudice is a severe sanction, Sutherland "voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent." Link v. Wabash Railroad, 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962), quoted in Fox v. Brewer, 620 F.2d at 180.
Last, the district court found that the revival of the action would be prejudicial to...
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