March 30, 1992 ____________________
Nos. 91-1027
91-1842
RICHARD C. FIORE,
Plaintiff, Appellant,
v.
WASHINGTON COUNTY COMMUNITY MENTAL HEALTH CENTER, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Coffin, Senior Circuit Judge,
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Torruella, Selya and Cyr, Circuit Judges.
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John W. Ranucci with whom D'Agostino & O'Donnell were on brief
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for appellant.
Charles J. Vucci with whom Thomas C. Plunkett, Leonard A.
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Kiernan, Jr., and Kiernan, Plunkett & Woodbine were on brief for
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appellees.
Gael Mahony with whom Ben T. Clements, Hill & Barlow, and David
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L. Shapiro were on brief amicus curiae.
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____________________
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OPINION EN BANC
OPINION EN BANC
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COFFIN, Circuit Judge. A panel of this court confronted a
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technical problem of civil procedure -- how the "separate
document" requirement of Fed. R. Civ. P. 58 should be applied in
the context of post-judgment motions -- and concluded that
meticulous compliance with the rule was necessary. The full
court, suspecting that a more flexible approach might exist,
decided to reconsider the issue en banc. Having given careful
consideration to the policies and practicalities at issue, we
reaffirm the position originally adopted by the panel and
advocated by amici.1 We therefore hold that the separate
document requirement applies to all appealable post-judgment
orders.2
I.
As the panel noted, only a few facts concerning the
underlying lawsuit are necessary for an understanding of the
issue before us. Richard Fiore originally brought this action
alleging that the Washington County Community Mental Health
Center and its employees had treated his young daughter
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1 To assist our deliberations, we asked litigator Gael
Mahoney and Professor David Shapiro of Harvard University's
School of Law to study the issue and prepare a joint amicus
brief.
2 We limit our discussion to denials of post-judgment
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motions only because the granting of such a motion presumably
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effects a change in the original judgment and therefore more
clearly requires a separate document setting out the change. But
___
see Wright v. Preferred Research, Inc., 937 F.2d 1556, 1561 (11th
___ ______ ________________________
Cir. 1991) (no separate document required when motions denied or
when court "amends, remits or in any way alters a judgment that
has already been entered once in accordance with Rule 58").
-3-
negligently by erroneously teaching her that her father had
engaged in "sexually inappropriate behavior" toward her. In
March 1990, the district court granted summary judgment for the
defendants.
Fiore subsequently filed a motion pursuant to Fed. R. Civ.
P. 60(b) to vacate the summary judgment and asking for leave to
file a third amended complaint. On June 27, 1990, the district
court denied the petition by means of a notation on a photocopy
of Fiore's motion.3 On July 17, Fiore filed a motion seeking
reconsideration or, alternatively, explanation of the court's
reason for denying the 60(b) motion. On September 21, the
district court denied the motion by means of a margin notation
and without discussion.
On October 22, Fiore moved the district court for entry of
final judgment on the June 27 denial of his Rule 60(b) motion.
He contended that that decision was not final for purposes of
appellate review because the order denying his motion had not
been set forth on a "separate document," as required by Rule 58
of the Federal Rules of Civil Procedure.4 The district court
issued a Memorandum and Order holding that the finality of the
June 27 decision "is a matter for the First Circuit Court of
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3 The word "Denied" was typed onto the front of the motion
above the judge's signature and the date.
4 Rule 58 requires that "[e]very judgment shall be set forth
on a separate document," and it provides that "[a] judgment is
effective only when so set forth . . . ."
-4-
Appeals to consider when and if Mr. Fiore appeals that
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decision."5 Accordingly, the court dismissed the motion for
want of jurisdiction. Fiore then filed the appeal first heard by
our panel last year, and now before us again.6
At stake is Fiore's right to appellate review of the
district court's June 27 decision. If Fiore is correct that the
district court had not entered a final judgment because there was
no "separate document," the time for filing an appeal of the
decision would not yet have begun to run. If the judgment had
become final, however, the time for appeal would have passed.
The panel concluded that the policies underlying the
separate document rule require that it be applied rigidly in both
the post-judgment and final judgment contexts. The ruling
created some confusion, however, because of the longstanding
practice of trial judges disposing of post-judgment motions with
curt margin orders. A majority of the court considered the
problem sufficiently troublesome to warrant en banc review and,
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5 Before filing his Rule 60(b) motion, Fiore had filed a
notice of appeal to this court from the March 20, 1990 order
granting summary judgment. He twice received extensions of time
for filing his brief and appendix so that, if necessary, his
appeal from the Rule 60(b) decision could be consolidated with
the original appeal. Fiore ultimately let the final deadline
pass, however, and this court dismissed the underlying appeal for
failure to prosecute under Local Rule 45. We subsequently denied
Fiore's motion to recall mandate and reinstate his appeal. Thus,
Fiore no longer has an appeal on the merits.
6 It has long been the view of this Circuit that district
court orders refusing to enter judgments are appealable.
Willhauck v. Halpin, 919 F.2d 788, 790 n.3 (1st Cir. 1990); In re
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Forstner Chain Corp., 177 F.2d 572, 575-76 (1st Cir. 1949).
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accordingly, we withdrew the panel decision to take a second
look.
II.
A. Language of the Rules
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Rule 58 provides that "every" judgment shall be set forth in
a separate document, and Rule 54(a) defines the word "judgment"
to include "a decree and any order from which an appeal lies."
In this circuit, it is well-established that denials of Rule
60(b) motions are appealable orders, see, e.g., FDIC v. Ramirez
___ ____ ____ _______
Rivera, 869 F.2d 624, 626 (1st Cir. 1989); Echevarria-Gonzalez v.
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Gonzalez-Chapel, 849 F.2d 24, 27 (1st Cir. 1988) ("[T]he order of
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denial [of a Rule 60(b) motion] meets the definition in the
Federal Rules of a 'judgment'."). The language of the rules thus
clearly embraces such orders, directing that they be set forth on
a separate document to be effective and to trigger the time for
appeal.
Although this case specifically involves only an order
rendered under Rule 60(b), amici, see supra note 6, have urged us
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to address Rule 58's impact on post-judgment motions
comprehensively and to adopt a uniform approach for all orders
denying post-judgment motions under Rules 50(b), 52(b) and 59(b)
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and (e), as well as under Rule 60(b).7 Because the underlying
principles are closely analogous, we believe it is appropriate to
do so. As with Rule 60(b) denials, we consistently have held
that denials of other post-judgment motions challenging the
judgment are appealable separately from the appeal of the
underlying judgment. See, e.g., Mariani-Giron v. Acevedo-Ruiz,
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945 F.2d 1, 3 (1st Cir. 1991) (denial of Rule 59(e) motion to
alter or amend judgment); Creedon v. Loring, 249 F.2d 714, 717
_______ ______
(1st Cir. 1957) (denial of new trial motion may be appealed
despite failure to appeal original judgment). Such orders
therefore also constitute "judgments" subject to Rule 58's
separate document requirement.8
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7 Rule 60(b) permits a party to seek relief from judgment
for various reasons, including mistake, newly discovered evidence
or fraud. Rule 50(b) governs motions for judgment
notwithstanding the verdict. Rule 52(b) governs motions for
amended or additional findings. Rule 59(b) permits a motion for
new trial, and 59(e) permits a motion "to alter or amend the
judgment."
8 Although our court has never held explicitly that denials
of post-judgment motions under Rules 50(b) and 52(b) are final
decisions appealable separately from the underlying judgment, we
see no basis upon which to distinguish such orders from those
rendered on motions made under Rule 59.
We recognize that this approach is at odds with some
authority from other circuits, which generally allow review of
orders denying post-judgment motions only as part of the appeal
from the underlying judgment. See 11 C. Wright & A. Miller,
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Federal Practice and Procedure 2818, at 116 (1973) (collecting
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cases); 6A J. Moore, J. Lucas & G. Grotheer, Jr., Moore's Federal
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Practice 59.15[1] at 59-288 & n.4 (1991) (collecting cases).
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But see, e.g., Stephenson v. Calpine Conifers II, Ltd., 652 F.2d
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808, 811 (9th Cir. 1981), overruled on other grounds by In Re
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Washington Pub. Power Supply Sys. Sec. Litig., 823 F.2d 1349 (9th
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Cir. 1989) (order denying motions for relief under Rule 59(e) is
appealable); Preble v. Johnson, 275 F.2d 275, 277 (10th Cir.
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1960) (denial of new trial is appealable). This rule of
nonappealability has two important exceptions, however: (1) if
-7-
Moreover, denials of motions made under Rules 50(b), 52(b),
and 59(b) and (e) are subject to the separate document
requirement as well by virtue of Rule 4(a) of the Federal Rules
of Appellate Procedure. Rule 4(a)(4) provides that, when a
timely motion has been made under any of those three Rules of
Civil Procedure, the time to appeal the underlying judgment will
run from "the entry of the order" denying or granting the motion.
Subsection (7) states that, to be entered within the meaning of
Rule 4(a), a judgment or order must be "entered in compliance
with Rules 58 and 79(a) of the Federal Rules of Civil Procedure."
Rule 4(a) therefore expressly imposes Rule 58's separate document
requirement on denials of these motions.
B. The Principle at Stake
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The clear mandate of the language is underscored by the
policy behind the separate document rule, which we believe can be
satisfied only if the provision is applied without exception to
all appealable judgments. The sole purpose of the separate
document requirement, enacted by a 1963 amendment to Rule 58, was
"to establish a certain reference point for determining the
timeliness of post-judgment motions and appeals." Alman v.
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Taunton Sportswear Mfg. Corp., 857 F.2d 840, 843 (1st Cir. 1988)
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the motion involves new matters arising after the judgment, an
order denying the motion is appealable, (2) when an appeal is
taken improperly from the order denying a post-judgment motion,
the appeal is treated as if taken from the underlying judgment.
11 C. Wright & A. Miller 2818, at 117-118 & nn.45, 46
(collecting cases). Since the practical effect of these
exceptions would be to permit appeals of many post-judgment
orders, we see no reason to revisit our precedent generally
holding such rulings to be appealable independently.
-8-
(citing Bankers Trust Co. v. Mallis, 435 U.S. 381, 385) (1978)
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(per curiam)). Logically, then, the rule should be applied to
the specific order that starts the clock running. Without
consistent application of this formality, there would be no
unambiguous signal that the time for appeal has begun to run.
But see Wright v. Preferred Research, 937 F.2d 1556, 1560-61
___ ___ ______ __________________
(11th Cir. 1991).
The need for a post-judgment "separate document" is
particularly acute in the context of Rule 60(b) motions, which
neither affect the finality of the original judgment nor extend
the time for appealing the judgment. Because the appeal of an
order denying a Rule 60(b) motion can be wholly independent of,
and not linked in time to, the date of the underlying judgment,
the separate document issued for that original judgment in no way
informs a party of the time to appeal the motion denial. The
only significant date is the date of the order denying the
motion. It therefore follows that, to provide certainty about
the proper time for appeal, such an order must be entered in
accordance with Rule 58's requirements.
Although motions filed under Rules 50(b), 52(b), and 59(b)
and (e) are more closely linked to the underlying judgment, the
need for a separate document memorializing denials of such
motions is equally apparent. Under Fed. R. App. P. 4(a), timely
motions under Rules 50(b), 52(b) and 59 suspend the finality of
the original judgment, and the time for appeal from both that
judgment and denial of the motions runs from the entry of the
-9-
order denying the motions. Thus, as in the 60(b) context, the
separate document setting forth the original judgment is of no
help in determining the precise date on which the time to appeal
begins to run. The significant date is the date of the order
denying the motion. Because Rule 58's purpose is to ensure that
that date is precisely clear, the separate document requirement
must apply to such orders.
We recognize that the type of uncertainty that prompted
the separate document rule is less likely to occur with respect
to post-judgment orders than for initial judgments. The Advisory
Committee that drafted the requirement expressed particular
concern about those occasions on which courts had issued opinions
or memoranda containing "apparently directive or dispositive
words" -- such as "the plaintiff's motion for summary judgment is
granted" -- and then later signed formal judgments. In such
circumstances, it was unclear whether the opinions or the later
orders started the time running for appeals and post-judgment
motions. See Fed. R. Civ. P. 58, Notes of Advisory Committee on
___
Rules, 1963 Amendment. Because post-judgment motions typically
will be narrowly focused and fairly specific in defining the
relief sought, a brief order disposing of such motions more
likely would be the court's last word on the case, and to be
understood as such.
Nonetheless, some risk of uncertainty always will exist.
When a court denies a motion by an informal notation such as that
used in this case, the parties may anticipate a memorandum
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explaining the court's ruling. This would be particularly true
for orders on motions brought under Rule 60(b). Because such
motions often will raise issues not previously addressed by the
court, they may well be expected to elicit further discussion by
the court. Moreover, Rule 60(b) orders are reviewable only for
abuse of discretion, Pagan v. American Airlines, Inc., 534 F.2d
_____ _______________________
990, 993 (1st Cir. 1976), making it reasonable to assume that the
court would follow a brief order with articulated reasons.
We therefore believe that consistency and clarity are better
achieved by following the rules as they are written than by
trying to draft a set of exceptions or by making efforts to
distinguish one type of judgment or order from another.
Accordingly, we accept amici's recommendation that we adopt a
uniform approach applying Rule 58 to all final orders denying
and, a fortiori, granting post-judgment motions under Rules
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50(b), 52(b), 59 (b) and (e), and 60 (b).
C. The Nature of a Separate Document
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Even conceding the applicability of the separate document
rule in the post-judgment context, one might argue that what the
district court did in this case was enough. Rather than simply
noting the denial on the face of the original motion, the court
photocopied Fiore's document before typing the word "Denied" and
affixing a signature and date onto it. The court thus produced a
"separate" piece of paper -- the photocopy -- to add to the
record.
-11-
In our view this practice does not fulfill the Rule 58
requirement. The concern noted by the Advisory Committee on
Rules stems from the uncertainty that arises when a court issues
a summary disposition that may or may not be followed by an
explanatory memorandum. A terse marginal notation inscribed on a
photocopy of the original motion is insufficient to eliminate the
possibility of confusion. It is the informality and brevity of
the marginal notation that causes uncertainty, and whether that
notation appears on the original or a photocopy is immaterial.
In our view, a document originated by the court, separate from
any other paper filed in the case, is necessary to communicate an
unambiguous message of finality. Accord United States v. Woods,
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885 F.2d 352, 353 (6th Cir. 1989) (reversing marginal grant of
summary judgment) ("A marginal order does not adequately notify a
party that its time for appeal has begun to run, for a party may
reasonably be confused as to the standing of its case when a
decision is rendered in such an informal manner."). See also
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Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir. 1986) (court
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order that was "merely endorsed on a stipulation" probably did
not meet rule 58 requirement).
Moreover, we believe that requiring a true separate
document in this context is the approach most compatible with
Supreme Court precedent on Rule 58. In United States v.
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Indrelunas, 411 U.S. 216 (1973) (per curiam), the Court held that
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the requirement must be "mechanically applied," quoting Professor
Moore's "cogent observation" that the provision "'would be
-12-
subject to criticism for its formalism were it not for the fact
that something like this was needed to make certain when a
judgment becomes effective . . . ,'" id. at 220-22 (quoting 6A
__
J.Moore, Moore's Federal Practice 58.04[4.-2], at 58-161
__________________________
(1972)). The Court's later decision in Bankers Trust, 435 U.S.
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at 381, relaxed the technicality of the rule only in
circumstances in which the right to appeal would be aided -- as
when a party timely appealed, without objection from its
adversary, from a judgment that technically was not final.
This precedent suggests that a less formal approach for
applying Rule 58's separate document requirement should be
undertaken only for the purpose of alleviating inconvenience or
hardship caused to appellants by the rule's hypertechnicality.
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We do not see how a standard rule assigning finality to a
marginal denial of a post-judgment motion, even if contained on a
"separate" photocopy of the motion, would serve such a purpose.
In addition, a party who treated a margin order as final,
filing an immediate notice of appeal from it, could find its
notice rendered a nullity if the trial court issued a subsequent
explanatory memorandum. See Willhauck, 919 F.2d at 792 ("[A]
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Notice of Appeal which is premature '"simply self-destructs"' and
should be treated as a nullity.") (quoting Griggs v. Provident
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Consumer Discount Co., 459 U.S. 56, 61 (1982) (quoting 9 J.
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Moore, B. Ward & J. Lucas, Moore's Federal Practice 204.12[1]
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(1982))). Causing wheels to spin for no practical purpose is
-13-
also contrary to the Supreme Court's handling of Rule 58. See
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Bankers Trust, 435 U.S. at 385.
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Thus, for the sake of certainty and predictability -- the
goals of the separate document requirement -- we think technical
compliance with the provision is as necessary in the post-
judgment context as it is in disposing of the merits. Accord
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Akers v. Ohio Dept. of Liquor Control, 902 F.2d 477, 480 (6th
_____ ______________________________
Cir. 1990) (extending Woods rejection of marginal decision as
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final to post-judgment context). See also 6A J. Moore, J. Lucas
___ ____
& G. Grotheer, Jr., Moore's Federal Practice 58.05[2] at 58-63
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& n.23 (1991) (When a post-judgment motion is denied, "the better
practice would be to follow the separate document requirement . .
. ."). But see Wikoff v. Vanderveld, 897 F.2d 232, 236 (7th Cir.
___ ___ ______ __________
1990) (a "minute order" suffices when the judge denies a request
to alter judgment but is insufficent when court grants motion and
amends original judgment); Hollywood v. City of Santa Maria, 886
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F.2d 1228, 1231-32 (9th Cir. 1989) (Rule 58 does not always
require separate document in post-judgment context).9
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9 In City of Santa Maria, the Ninth Circuit refused to
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require the district judge to issue a document separate from its
nine-page order denying a Rule 59 motion. The circuit held that,
unlike for judgments on the merits, Rule 58 did not require that
there be a "separate, one sentence order" in addition to a
lengthy opinion or memorandum for post-judgment motions. 886
F.2d at 1231. This decision, although at odds with our conclusion
that post-judgment motions should be treated identically with
judgments on the merits, is not necessarily inconsistent with our
holding that a photocopy of a marginal notation is insufficient.
It is not at all clear that the 9th Circuit would hold that a
marginal notation would satisfy the "separate document"
requirement.
-14-
We do not expect that strict application of Rule 58 will
result in a significantly heavier burden for district courts that
until now have created a separate document by typing their
disposition on a photocopy of the original motion. Technology
makes a true separate document easy to produce. Presumably, the
district court has saved (or easily could save) the computer file
with the case heading from its final judgment document, and it
will take minimal effort to make appropriate revisions for the
post-judgment context. See Carter v. Beverly Hills Savings and
___ ______ __________________________
Loan Ass'n, 884 F.2d 1186, 1191 (9th Cir. 1989) ("[I]t is very
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simple to comply with Rule 58. A judgment or an order signed by
the judge or clerk that is a separate document and labeled as a
judgment or order would clearly comply.").
Moreover, under Rule 58(1), it is primarily the
responsibility of the clerk, not the court, to prepare the
separate document. Under that subsection, when a party is
awarded a sum certain or costs, or when all relief is denied,
"the clerk, unless the court otherwise orders, shall forthwith
prepare, sign, and enter the judgment without awaiting any
direction by the court." In other circumstances, the court's
obligation is only to "promptly approve the form of judgment."
See Fed. R. Civ. P. 58(2).
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Accordingly, we conclude that a marginal notation, even when
affixed to a photocopy of the motion, does not satisfy the
separate document requirement.
-15-
We add that if a more effective and convenient governance of
appeals from denials of post-judgment motions can be devised, the
responsibility for considering change would lie with the
appropriate Rules Committees of the Judicial Conference of the
United States.
III.
If we were to hold without qualification that a judgment is
not final until the court issues a separate document, we would
open up the possibility that long dormant cases could be revived
years after the parties had considered them to be over. See
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Wright v. Preferred Research, Inc., 937 F.2d 1556, 1560 (11th
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Cir. 1991). We hasten to shut off that prospect. It is well-
established that parties may waive technical application of the
separate document requirement. See Bankers Trust, 435 U.S. at
___ _____________
387-88; Willhauck, 919 F.2d at 792.10 We believe it
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appropriate, absent exceptional circumstances, to infer waiver
where a party fails to act within three months of the court's
last order in the case. When a party allows a case to become
dormant for such a prolonged period of time, it is reasonable to
presume that it views the case as over. A party wishing to
pursue an appeal and awaiting the separate document of judgment
from the trial court can, and should, within that period file a
motion for entry of judgment. This approach will guard against
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10 An appellant may be deemed to have waived the requirement
when, despite the lack of a separate document, it filed a timely
appeal based on the date of the judgment.
-16-
the loss of review for those actually desiring a timely appeal
while preventing resurrection of litigation long treated as dead
by the parties.11
IV.
Our preceding discussion makes it clear that the district
court's June 27 denial of Fiore's 60(b) motion technically was
not final. Defendants argue that Fiore nevertheless is
foreclosed from filing an appeal because his request for a
separate document came too late, after he already had waived the
Rule 58 requirement. According to defendants, waiver occurred
when Fiore filed a motion for reconsideration of the June 27
decision and asked this court for an extension of time to file an
appeal covering that decision.
We disagree that these actions amounted to waiver. Both the
Supreme Court and our own court have emphasized that the separate
document requirement "should always be interpreted 'to prevent
loss of the right to appeal, not to facilitate loss,'" Willhauck,
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919 F.2d at 792 (quoting Bankers Trust, 435 U.S. at 386). See
______________ ___
also 6A Moore's Federal Practice 58.02.1[2], at 58-20; Spann v.
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Colonial Village, Inc., 899 F.2d 24, 32 (D.C. Cir. 1990); Matter
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11 We see no conflict between this conclusion and Supreme
Court precedent suggesting that Rule 58's technical requirements
should be relaxed only to assist an appeal, not to foreclose one.
See supra at 12. Allowing a party to use the separate document
___ _____
requirement to delay indefinitely an appeal would not serve Rule
58's purpose of protecting against mistakenly ill-timed appeals.
The three-month period generally should ensure that a failure to
appeal was a matter of choice, not confusion, and any further
delay in finality would serve no one's interest.
-17-
of Seiscom Delta, Inc., 857 F.2d 279, 283 (5th Cir. 1988).
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Consistent with this principle, we have held more than once that
a party's decision to move forward with a case in a manner
suggesting satisfaction with a non-final judgment does not
preclude the party from later contesting the finality of that
judgment. See Willhauck, 919 F.2d at 792; Alman, 857 F.2d at
___ _________ _____
845. See also Indrelunas, 411 U.S. at 221 (government's earlier
___ ____ __________
appeal does not foreclose its argument that there had been no
appealable judgment).
This case presents an even stronger basis for rejecting
waiver than did our previous decisions. The appellants in both
Willhauck and Alman actually had filed appeals, unsuccessful on
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other grounds, of the decisions they subsequently argued were not
final. In this case, however, Fiore never filed an appeal of the
judgment he claims lacks finality. Neither of the actions
assertedly demonstrating waiver -- his motion for reconsideration
and his request to this court for an extension of time to appeal
-- show acquiescence with the non-final decision. The motion for
reconsideration presumably was designed to eliminate the need for
appeal of the Rule 60(b) judgment, while the request for an
extension of time was intended to protect his right to
consolidate appeals, if necessary. The fact that he did not
request a formal final judgment until he was ready to seek review
in this court in no way demonstrates an intent to waive the
protections of the requirement. Accord Hughes v. Halifax County
______ ______ ______________
School Bd., 823 F.2d 832, 836 (4th Cir. 1987) (rejecting waiver
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-18-
argument where party "filed a motion for entry of judgment,
clearly indicating that he did not view the district court's
order as its final judgment").
The district court therefore was obliged to enter final
judgment on the June 27 decision pursuant to Rules 58 and 79(a),
as it did following the panel decision.12 We, in turn, must
now confront Fiore's appeal on the merits.
V.
The district court granted summary judgment for defendants
in March 1990 based on the doctrine of collateral estoppel,
ruling that Fiore could not relitigate the fact that he had
engaged in sexually inappropriate behavior toward his daughter,
Katie.13 Because the court viewed Fiore's negligence claim as
premised solely on the defendants' having improperly taught Katie
that he abused her, the court concluded that the claim was
without foundation.
Fiore's Rule 60(b) motion proposed a new complaint that
would bypass the issue of his conduct toward Katie. While
deleting reference to his innocence, the complaint would add a
paragraph alleging that defendants' tactics permanently alienated
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12 Following the district court's issuance of the separate
document, Fiore appealed the denial of the Rule 60(b) motion to
this court. We consolidated that appeal with the en banc review
of the procedural question.
13 In the course of trying the Fiores' divorce action, a
Connecticut court had determined that Fiore had, in fact, engaged
in such behavior.
-19-
Katie from him and thus "constituted a tortious and unjustifiable
interference with [their] relationship." See 22 of (proposed)
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Third Amended Complaint (filed June 15, 1990). He offered in
support of his motion the newly obtained opinion of a
psychologist, who Fiore claimed would testify that defendants'
treatment of Katie was negligent regardless of whether he had
engaged in sexually inappropriate behavior towards her.
This was the motion the court originally denied by means of
a margin order. The district court's later explanation stated,
in pertinent part, as follows:
First of all, I note that June 27, 1990 was not
the first time that I denied plaintiff's motion to file
a third amended complaint. I already addressed the
issue when I granted the defendants' motion for summary
judgment on March 19, 1990. Accordingly, I stand by
the reasons articulated in my Memorandum and Order of
March 19, 1990.
Fiore argues that, whatever the merit of his 60(b) motion, it was
an abuse of discretion for the court to reject it based on the
prior reasoning since the motion was specifically drafted to
remedy the collateral estoppel problem identified in the earlier
order.
We acknowledge that the district court's brief reference to
its earlier reasoning appears facially non-responsive to Fiore's
motion. Our comparison of the proposed amended complaint with
the earlier version persuades us, however, that the court acted
within its discretion in denying the motion. The new matter that
Fiore sought to introduce focused on the therapeutic approach
chosen to treat Katie, which involved efforts by defendants to
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elicit angry feelings from her toward her father. In 22, Fiore
challenged this approach as "inappropriate, ineffective and
damaging," and complained that it "taught the child to hate the
plaintiff thus permanently alienating her from [him]."
In the next paragraph, however, Fiore retained the
allegation from the earlier complaint that "defendants
negligently taught Katie that the plaintiff had sexually abused
her." Compare 23 of (proposed) Third Amended Complaint (filed
_______
June 15, 1990) with 25 of (proposed) Third Amended Complaint
____
(filed Feb. 5, 1990). Thus, while the new complaint eliminated
the explicit assertion that Fiore had never abused his daughter,
see 23 of Third Amended Complaint (filed Feb. 5, 1990), it
___
nevertheless reiterated the theory that defendants' negligence
stemmed from their treating the child based on the inappropriate
assumption that Fiore had harmed her. This theory was precisely
what the district court had rejected on collateral estoppel
grounds, and why the court undoubtedly felt that it could rest on
its earlier rationale in rejecting the Rule 60(b) motion.
The new complaint did focus more specifically on the type of
therapy used to treat Katie, and the allegations in 22 could be
construed to assert that defendants' improper technique caused a
degree of alienation between himself and Katie unwarranted by his
sexually abusive behavior toward her. We cannot fault the
district court for failing to adopt this interpretation of the
new complaint, however, in light of the language in 23
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continuing to link defendants' negligence to their having taught
Katie that plaintiff sexually abused her.
Moreover, we doubt that the district court would -- or
should -- have reopened the case under Rule 60(b) to permit Fiore
to pursue such a claim. Defendants' motion for summary judgment
had been based, in part, on the doctrine of collateral estoppel.
Fiore therefore had notice long before the case reached final
judgment that the district court might rule on that ground.
Hence, there was no reason for waiting until after the judgment
to offer, as an alternative approach, the expert opinion and
recharacterized version of the negligence claim. In such
circumstances, we see no basis for disturbing the finality of the
judgment.
We therefore affirm the district court's denial of Fiore's
Rule 60(b) motion.
The judgment in No. 91-1027 is reversed, and the judgment in
____________________________________________________________
No. 91-1842 is affirmed. No costs.
_______________________ ________
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APPENDIX
SEPARATE DOCUMENTS ON POST-JUDGMENT MOTIONS
Recognizing the practical importance of routinely
faithful compliance with the rules as we have
interpreted them -- on the part of judges, magistrate
judges and clerical personnel -- we highlight the
following:
1. Any order denying (as well as granting) post-
judgment motions under Rules 50(b), 52(b), 59(b) and
(e), and 60(b) of the Federal Rules of Civil Procedure
must be set forth on a "separate document."
2. A "separate document" is a document originated
by the court, not a party, separate from any other
paper filed in the case. A marginal note on a copy of
a motion, for example, will not suffice. Normally,
under Rule 58(1), clerks should draft the document for
the judge's approval.
3. If a party appeals a judgment that complies
with the requirements of Rule 58 except that for a
______
separate document
a. within a period that would make the
appeal timely if judgment had been entered on
a "separate document," we will not dismiss
the appeal for lack of such a document but
will deem the appellant to have waived his
right to it.
b. after the period in subparagraph (a)
but within three months of the final action
in the case, as set forth in subparagraph
(a), we will deem appellant to have waived
the right to a "separate document." If,
however, no appeal has been filed, the party
will be free to argue that judgment has not
yet been "entered" as Rule 58 requires, and
that the time to file an appeal therefore has
not yet begun to run. If, before appealing,
the party files a motion to set forth the
judgment on a "separate document," the
district court should do so.
c. more than three months after the
last action in the case, we shall, absent
exceptional circumstances, deem the party to
have waived his right to a judgment entered
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on a separate document. Such an appeal
therefore will be dismissed as untimely.
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