Whittington v. Milby

• Decision Date: 24 April 1991
• Docket Number: No. 89-6394,89-6394
• Citation: 928 F.2d 188
• Parties: Kristen Clark WHITTINGTON, Plaintiff-Appellant, v. Robert L. MILBY, Marcia Milby Ridings, Charles Luker, Elmer Cunnagin, Danny Evans, and Commonwealth of Kentucky Cabinet for Human Resources, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 188

928 F.2d 188

18 Fed.R.Serv.3d 1335

Kristen Clark WHITTINGTON, Plaintiff-Appellant, v. Robert L. MILBY, Marcia Milby Ridings, Charles Luker, Elmer

Cunnagin, Danny Evans, and Commonwealth of

Kentucky Cabinet for Human Resources,

Defendants-Appellees.

No. 89-6394.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 26, 1990.

Decided March 14, 1991.

Rehearing and Rehearing En Banc

Denied April 24, 1991.

Kristen Clark Whittington, James E. Morreau, Jr. (argued), Louisville, Ky., for plaintiff-appellant.

Elizabeth U. Mendel (argued), Woodward, Hobson & Fulton, Louisville, Ky., Willis C. Cunnagin, London, Ky., Robert V. Bullock, Asst. Atty. Gen., Office of the Atty. Gen. of Kentucky, Ryan M. Halloran, Gen. Counsel, Trisha Zeller James, Autumn F. Corns, Cabinet for Human Resources, Office of the Counsel, Frankfort, Ky., for defendants-appellees.

Before NELSON and RYAN, Circuit Judges, and LIVELY, Senior Circuit Judge.

PER CURIAM.

This action incorporates a claim under 42 U.S.C. Sec. 1983 and pendent claims under Kentucky tort law. The district court dismissed the case with prejudice on statute of limitations grounds. We shall affirm the dismissal of the Sec. 1983 claim, albeit on other grounds, and we shall direct that the dismissal of the pendent state-law claims be made without prejudice.

I

In August of 1982 a young unmarried Kentucky woman gave birth to a child whom she agreed to put up for adoption. On the day the child was to be released from the hospital, plaintiff Kristen Clark Whittington filed a petition in the Circuit Court of Jefferson County, Kentucky, asserting rights as the child's father. The court denied Mr. Whittington's petition, and the child was placed with the prospective adoptive parents.

In October of the same year the adoptive parents filed a petition in the Circuit Court for Laurel County, Kentucky--the county of their residence--to terminate the parental rights of both of the child's natural parents. An attempt to make personal service of process on Mr. Whittington proved unsuccessful, but in February of 1983 the court nonetheless granted the petition. A petition for adoption was filed shortly thereafter. This petition was also granted, and judgment of adoption was entered in March of 1983.

In September of 1984 Mr. Whittington filed a motion in the Laurel County court to set aside the order terminating his parental rights. The court denied the motion. The Kentucky Court of Appeals reversed this decision because it found that the efforts to serve Mr. Whittington with process were not conducted in good faith and that the trial court therefore had not obtained jurisdiction over Mr. Whittington's person. The Kentucky Supreme Court reversed the decision of the Court of Appeals and reinstated the judgment of the trial court, finding that service had been attempted in good faith and that the lower court's exercise of jurisdiction was proper. We refer the reader to that decision, published at 737 S.W.2d 676 (Ky.1987), cert. denied, 485 U.S. 979, 108 S.Ct. 1276, 99 L.Ed.2d 487 (1988), for a fuller recitation of the pertinent facts.

In January of 1989, proceeding pro se and in forma pauperis, Mr. Whittington filed a complaint in the United States District Court for the Western District of Kentucky alleging violations of his civil rights under 42 U.S.C. Sec. 1983. The complaint also raised two pendent state-law claims: outrageous conduct causing severe emotional distress and prima facie tort. Named as defendants were: Robert Milby and Marcia Milby Ridings, the attorneys who filed the petition to terminate the plaintiff's parental rights on behalf of the child's adoptive parents; Elmer Cunnagin, the Laurel County Attorney at the time the petition to terminate was filed; Charles Luker, the judge who granted the petition; Danny Evans, the "warning order attorney" who had attempted to serve Mr. Whittington with process before the petition was granted; and the Kentucky Cabinet for Human Resources. (Mr. Whittington claimed that the Cabinet had failed to discharge its duty "to make every effort possible to reunite parent and child before parental rights are to be terminated.")

On February 28, 1989, Mr. Whittington moved for leave to amend his complaint to state a more definite claim and to name as defendants certain individual members of the Cabinet. This motion was not accompanied by a copy of the proposed amended complaint.

After a pretrial conference in May of 1989 the district court dismissed Mr. Whittington's original complaint, with prejudice, on statute of limitations grounds. Mr. Whittington then filed various post-judgment motions, including a motion to vacate, a motion to make specific findings as to his motion to amend the complaint, a motion to make specific findings as to when his cause of action accrued, a motion to make specific findings on the issue of equitable tolling, a motion to extend the time in which to file a reply to the defendants' response to his motion to vacate, and a motion to subpoena records from the Laurel County Circuit Court. The district court denied each of these motions in an order entered on September 28, 1989. That order provided in part as follows:

"[t]hough the plaintiff moved to amend his complaint, he failed to tender an amended complaint. Furthermore, there is nothing in plaintiff's motion to amend which would indicate that the plaintiff could escape the one year statute of limitations by amending his complaint. The last three allegations merely represent the plaintiff's vehement belief that absent the statute of limitations he would succeed on the merits. The Court acknowledges that the plaintiff is a zealous advocate. However, even a strong belief in one's own case is insufficient to overcome the well-established bar to actions filed outside the limitations period. Therefore, the Court finds that no justifiable reason for relief from judgment has been asserted and judgment will stand."

Five days later, on October 3rd, the district court issued the following order:

"In its Order of September 28, 1989, this Court stated that no amended complaint accompanied the plaintiff's motion which was filed on February 28, 1989. Upon review of the record, the Court finds that an amended complaint was tendered to the Court on March 28, 1989, one month following the filing of the motion to amend. This Court, in its discretion and by virtue of its actions, denied leave to amend the complaint and reiterates that ruling in this Order.

IT IS HEREBY ORDERED that the motion to amend the complaint be and hereby is DENIED.

This is a final and appealable Order, there being no just cause for delay."

On November 2, 1989, Mr. Whittington filed his notice of appeal. He is now represented by counsel.

II

We must first consider whether Mr. Whittington's notice of appeal was timely. Fed.R.App.P. 4(a) provides, in pertinent part, as follows:

"[i]n a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from...." (Emphasis supplied.)

In the case at bar, Mr. Whittington filed his notice of appeal on November 2, 1989--within 30 days of the court's order of October 3rd, but not within 30 days of its order of September 28th. In the notice of appeal itself, Mr. Whittington asserted that the second order superseded the first; we do not believe that this assertion is correct.

To be appealable, an order must either be "final" within the meaning of 28 U.S.C. Sec. 1291, which gives us "jurisdiction of appeals from all final decisions of the district courts," or the order must come within one of the recognized exceptions to the final judgment rule. The Supreme Court has defined a final order as one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911 (1945). The Court has also emphasized that the requirement of finality is to be given a practical rather than a technical construction. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149-50, 40 L.Ed.2d 732 (1974). As our own court has stated, "[t]he requirement of finality ... does not necessarily mean that an order to be appealable must be the last possible one to be made in a case." U.S. ex rel. Tennessee Valley Authority v. Easement and Right-of-Way over Certain Land in Cumberland County, Tennessee, 386 F.2d 769, 770 (6th Cir.1967), cert. denied, 390 U.S. 947, 88 S.Ct. 1034, 19 L.Ed.2d 1136 (1968). The following words of the Supreme Court are particularly instructive:

"[T]he mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality." Federal Trade Commission v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-212, 73 S.Ct. 245, 248-49, 97 L.Ed. 245 (1952).

The district court's order of October 3rd did not "disturb or revise" legal rights settled by its order of September 28th. The only reason for issuance of the October 3rd order appears to have been that the court wished to correct its earlier statement that Mr. Whittington had failed to tender a copy of his amended complaint. Under ordinary circumstances we would conclude that the order of September 28th was the final order from which Mr. Whittington...