Whitaker v. City of Houston, Tex.
| Decision Date | 26 June 1992 |
| Docket Number | No. 91-2642,91-2642 |
| Citation | 963 F.2d 831 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 304, 59 Empl. Prac. Dec. P 41,599, 23 Fed.R.Serv.3d 365 Claude WHITAKER, Plaintiff-Appellant, v. CITY OF HOUSTON, TEXAS, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gregg M. Rosenberg, Houston, Tex., for plaintiff-appellant.
Mark Thompson, John E. Fisher, Asst. City Attys., Houston, Tex., for defendants-appellees.
Appeal from the United States District Court for the Southern District of Texas.
Before POLITZ, Chief Judge, and REYNALDO G. GARZA and WIENER, Circuit Judges.
In this procedurally tangled case, Plaintiff-Appellant Claude Whitaker complains that the district court abused its discretion in denying on grounds of undue delay his motion to amend his previously dismissed complaint. We adopt the rule enunciated by the Eleventh Circuit in Czeremcha v. Intern. Ass'n of Mach. & Aero. Workers, 1 that, unless the dismissal order of the district court expressly states or clearly indicates the court's intention to dismiss the action, a plaintiff may seek leave to amend under Fed.R.Civ.P. 15(a), even though the complaint has been dismissed. Applying that rule to this case, we conclude nevertheless that the district court did not abuse its discretion when it denied Whitaker's post-dismissal motion to amend his complaint, and therefore affirm.
On May 30, 1989, Whitaker brought suit against the City of Houston Police Department (Houston) under 42 U.S.C. §§ 1981 and 1983 after he was denied promotion to Assistant Chief. Whitaker, a black male, alleged that the process used by Houston to evaluate applicants for this position was racially biased. Houston responded on September 5, 1989, with a motion to dismiss under Fed.R.Civ.P. 12(b)(6). On June 11, 1990, the district court granted this dismissal motion, ruling that Whitaker had failed to plead facts indicative of a municipal policy of racial discrimination. Unfortunately for purposes of judicial clarity, the district court stated in its order that it dismissed Whitaker's "claims," and thus did not indicate clearly whether it was dismissing Whitaker's action or just his complaint. Neither did the district court enter judgment on a separate document as required under Rule 58.
On July 9, 1990, Whitaker filed a motion under Rule 15(a) for leave to amend his previously dismissed pleading. Whitaker, in so doing, relied on the rule, articulated by the Eleventh Circuit in Czeremcha, 2 that a plaintiff whose "complaint" has been dismissed may elect either to (1) treat the dismissal as a final appealable order and appeal under Fed.R.Civ.P. 4(a), or (2) ask for leave to amend the original pleading under Rule 15(a). Whitaker elected the latter alternative, but failed to submit the proposed amended complaint when he filed his motion to amend.
On July 17, 1990, Houston requested, and was granted, an unopposed extension of time until August 10, 1990, to respond to Whitaker's motion. Whitaker filed his amended complaint on August 3, 1990--less then two months after the district court's dismissal of his complaint, but only seven days before Houston's response to his motion to amend was due. On February 21, 1991, the district court denied Whitaker leave to amend, explaining that his "delay in seeking to amend and the proposed amendment that was eventually submitted" showed that Whitaker had not diligently prosecuted his case. Again, the district court did not enter a Rule 58 judgment.
On March 5, 1991, Whitaker filed a motion asking the district court to reconsider its denial of his motion for leave to amend. On May 30, 1991, the district court denied this motion and, once again, did not enter a Rule 58 judgment. On June 6, 1991, Whitaker filed a notice of appeal from the May 30, 1991, order denying the motion to reconsider.
The record in this case shows that the district court never entered a Rule 58 judgment. The district court's ruling on Houston's motion to dismiss appears on the last page of a "Memorandum and Order"--not on a separate document as Rule 58 requires. 3 Until set forth on a separate document in compliance with Rule 58, a statement tacked on at the end of an opinion is not a judgment. 4 The district court also failed to enter a Rule 58 judgment after denying Whitaker's motion to amend and again after denying his motion to reconsider. The district court's failure ever to enter a Rule 58 judgment has tied several procedural and jurisdictional knots that this court must untangle before turning to the single issue of substance raised by the parties.
As a threshold matter, we note that there is no question but that we may elect to take jurisdiction over this appeal even though there never was a separate Rule 58 judgment. In Banker's Trust Co. v. Mallis, 5 the Supreme Court held that a circuit court has jurisdiction over an appeal from an order of dismissal when the order was "the final decision in the case" and the appellee "did not object to the taking of the appeal in the absence of a judgment." 6 In this case, Houston has not objected to the omission of a Rule 58 judgment, and has thus waived its right to do so. And the district court's order dismissing Whitaker's complaint clearly constituted a final judgement for purposes of 28 U.S.C. § 1291 as it ended "the litigation on the merits" and left "nothing for the court to do but execute the judgment." 7 As such, the district court's post-dismissal orders--those denying Whitaker's motions to amend and to reconsider--were also final and appealable. This is true, we note, even though the absence of a Rule 58 judgment meant that neither the ten days for serving a Fed.R.Civ.P. 59 motion nor the thirty days for filing a notice of appeal (from either the district court's dismissal order or its subsequent orders denying post-dismissal motions) started to run.
Having thus determined that this court may take jurisdiction over this appeal, 8 we must next consider whether we should nevertheless decline to exercise jurisdiction. Under Townsend v. Lucas, 9 this court may elect to dismiss an appeal in which no Rule 58 judgment has been entered, but is not required to do so. Generally, this court declines under Townsend to hear the appeal if the status of a post-judgment motion is unclear due to the lack of a Rule 58 judgment or if the notice of appeal would have been untimely if the order appealed had constituted a Rule 58 judgment. In this case, however, there is no problem with the timeliness of Whitaker's notice of appeal under Rule 4(a)(1) from the order denying reconsideration, and there is no need to characterize Whitaker's motions for purposes of determining this court's standard of review. Therefore, as there is little to be gained from dismissing now and inflicting this case on another panel later, we accept jurisdiction over Whitaker's appeal.
The district court's ruling on Houston's motion to dismiss, on the last page of its combined "Memorandum and Order," states: "it is ORDERED that defendant the City of Houston's Motion to Dismiss is hereby GRANTED and that plaintiff's claims against the City of Houston and the Houston Police Department are hereby DISMISSED." Thus, as noted earlier, the district court's ruling neither states nor clearly indicates whether the court intended to dismiss Whitaker's action or merely his complaint.
Neither does our examination of the record readily resolve this question. We recognize that district courts often intend to dismiss an entire action when they state that a plaintiff's "claims" are dismissed. But had that been the district court's intention here, surely it would not have even considered Whitaker's motion to amend. 10 In other words, if Whitaker's action had been dismissed there would have been nothing left for Whitaker to amend, and so his only options would have been to move for reconsideration of the judgment or to appeal. 11 Furthermore, Whitaker stated in his motion for reconsideration that he was electing not to treat the district court's ruling as a final appealable order but was asking instead for leave to amend under Rule 15(a). We find it revealing, therefore, that the district court did not take issue with Whitaker's characterization of its ruling. Finally, while the district court did not dismiss Whitaker's pleading with express leave to amend, neither the order nor the circumstances indicate that amendment was not possible. The district court did not state, for example, that Whitaker's claims were dismissed with prejudice. In summary, therefore, we find that on balance the evidence in this case indicates that the district court probably intended to dismiss only Whitaker's complaint, not his action.
We next consider whether Whitaker had the right to amend his complaint as a matter of course under Rule 15(a), even though his complaint had been dismissed by the district court. Rule 15(a) provides in pertinent part:
A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
This court follows the prevailing view that a motion to dismiss is not a responsive pleading. 12 A literal interpretation of Rule 15(a), therefore, would allow a plaintiff to amend as a matter of course even after a motion to dismiss has been granted.
The circuits are in disagreement, however, on whether a plaintiff's right to amend under Rule 15(a) terminates upon dismissal of...
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