The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1781
SHAMEKA BROWN,
Plaintiff‐Appellant,
v.
FIFTH THIRD BANK,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 2981 — James F. Holderman, Judge.
____________________
SUBMITTED JULY 8, 2013 — DECIDED SEPTEMBER 12, 2013
____________________
Before POSNER, Circuit Judge.
Before me is a motion by the appellee to dismiss the ap‐
peal as untimely. The motion was referred to me because I
was motions judge (a position that rotates among the judges)
when the motion was filed.
Federal Rule of Civil Procedure 58 requires that a judg‐
ment by a district court be set forth in a separate document.
If it is not, then judgment is deemed to be entered 150 days
2 No. 13‐1781
after the court’s final decision, Fed. R. Civ. P. 58(c)(2)(B); see
also Fed. R. App. P. 4(a)(7)(A)(ii)—in which event the appeal
in this case is timely; otherwise it is not.
The Administrative Office of the U.S. Courts has drafted
a form, called AO 450, which we’ve described as “the pre‐
ferred and sound vehicle for complying with Rule 58.” Hope
v. United States, 43 F.3d 1140, 1142 (7th Cir. 1994). (“Hope”
turns out to be an apt description of the quoted statement.)
Here is the text of the form:
JUDGMENT IN A CIVIL ACTION
The court has ordered that (check one):
□ the plaintiff (name) ________________ recover from the
defendant (name) ________________ the amount of
________________ dollars ($ ___), which includes pre‐
judgment interest at the rate of ___%, plus post judg‐
ment interest at the rate of ___% per annum, along
with costs.
□ the plaintiff recover nothing, the action be dismissed
on the merits, and the defendant (name)
________________ recover costs from the plaintiff
(name) ________________.
□ other: ________________________________.
This action was (check one):
□ tried by a jury with Judge ________________ presiding,
and the jury has rendered a verdict.
□ tried by Judge ________________ without a jury and
the above decision was reached.
No. 13‐1781 3
□ decided by Judge ________________ on a motion for
________________________________.
Date: ________________
CLERK OF COURT
_____________________________
Signature of Clerk or Deputy Clerk
The Appendix to the civil rules contains two other
forms—Forms 70 and 71—that are similar to, but even sim‐
pler than, form AO 450, and are permissible alternatives to
it. 11 Charles A. Wright et al., Federal Practice and Procedure
§ 2785, p. 32 (3d ed. 2012). But alas, the Rules Committee,
while acknowledging the “somewhat divergent caselaw on
the question of what types of documents meet the ‘separate
document’ requirement,” 16A Charles A. Wright et al., Fed‐
eral Practice and Procedure § 3950.2 n. 28, p. 216 (4th ed. 2008),
has declined to require that any of these forms be used to
satisfy it. 2002 Committee Notes to Fed. R. Civ. P. 58.
An inexplicable failure to use any of the forms, a failure
richly productive of uncertainty, is common in the Northern
District of Illinois. We have remarked this on a number of
occasions, see, e.g., Carter v. Hodge, 2013 WL 4022531, at *1
(7th Cir. Aug. 8, 2013); Perry v. Sheet Metal Workers’ Local No.
73 Pension Fund, 585 F.3d 358, 359 (7th Cir. 2009); Hope v.
United States, supra, 43 F.3d at 1142; Otis v. City of Chicago, 29
F.3d 1159, 1163 (7th Cir. 1994) (en banc); Hatch v. Lane, 854
F.2d 981, 982 (7th Cir. 1988) (per curiam)—without visible
effect on the Northern District’s practice.
Often the district court clerk or a member of his staff en‐
ters a minute order rather than filling out one of the ap‐
4 No. 13‐1781
proved forms; this court has then to decide whether the or‐
der satisfies Rule 58. In the present case, a suit charging em‐
ployment discrimination, the district court on December 20,
2012, in a document captioned “Memorandum Opinion and
Order,” dismissed the complaint with prejudice. The clerk
entered the Memorandum Opinion and Order on the court’s
docket the next day. A docket entry captioned “Notification
of Docket Entry” stated that the district court had entered a
Memorandum Opinion and Order. The docket entry was re‐
quired by and complied with Rule 77(d)(1) of the Federal
Rules of Civil Procedure, which provides, so far as relates to
this case, that “immediately after entering an order or judg‐
ment, the clerk must serve notice of the entry … on each
party who is not in default for failing to appear. The clerk
must record the service on the docket.”
The clerk’s entry recited the district court’s ruling, can‐
celled an evidentiary hearing scheduled for the following
month, noted the denial of a motion to remand the case to
state court and that two other motions, which the defendant
had filed, were moot, and referred the parties to the court’s
opinion “for further details.” The entry was not signed or
initialed. The defendant contends that although noncompli‐
ant with form AO 450, the entry satisfies Rule 58’s require‐
ment of a separate document. If this is correct, we have no
jurisdiction of the appeal, because Brown filed her notice of
appeal 113 days after the docket entry.
We have emphasized the importance of compliance with
Rule 58: “The purpose of the separate judgment required by
Fed.R.Civ.P. 58 is to let the parties (and the appellate court)
know exactly what has been decided and when. The entry of
a final judgment under Rule 58 starts the clock for an appeal.
No. 13‐1781 5
But a document that does not dispose of the case does not
start the clock. The ‘losing’ party [in such a case] must ap‐
peal in order to guard against the chance that the case is over
without knowing what the disposition is, and the appellate
court is in a quandary about its ability to decide the case ….
Rule 58 is designed to produce clarity. An inadequate order
undermines the function of the rule.” Reytblatt v. Denton, 812
F.2d 1042, 1043 (7th Cir. 1987) (per curiam).
Despite this strong statement, this court has ruled in a
number of cases that a district court’s docket entry, akin to
the one in this case, satisfied Rule 58’s requirement of a sepa‐
rate document. See, e.g., Nocula v. UGS Corp., 520 F.3d 719,
724 (7th Cir. 2008); Properties Unlimited, Inc. Realtors v. Cen‐
dant Mobility Services, 384 F.3d 917, 920 (7th Cir. 2004); Grun
v. Pneumo Abex Corp., 163 F.3d 411, 422 n. 8 (7th Cir. 1998);
Hope v. United States, supra, 43 F.3d at 1142; American National
Bank & Trust Co. v. Secretary of HUD, 946 F.2d 1286, 1289 (7th
Cir. 1991). No other court has endorsed this view, however,
Walters v. Wal‐Mart Stores, Inc., 703 F.3d 1167, 1171 (10th Cir.
2013); Transit Mgmt. of Southeast Louisiana, Inc. v. Group Ins.
Administration, Inc., 226 F.3d 376, 382 (5th Cir. 2000); Ingram
v. ACandS, Inc., 977 F.2d 1332, 1337–39 (9th Cir. 1992); see
also Radio Television Espanola S.A. v. New World Entertain‐
ment, Ltd., 183 F.3d 922, 932 n. 11 (9th Cir. 1999); cf. Corrigan
v. Bargala, 140 F.3d 815, 817–18 (9th Cir. 1998); Axel Johnson
Inc. v. Arthur Andersen & Co., 6 F.3d 78, 84 (2d Cir. 1993);
Fiore v. Washington County Community Mental Health Center,
960 F.2d 229, 234–35 (1st Cir. 1992) (en banc); Lupo v. R. Row‐
land & Co., 857 F.2d 482, 484 (8th Cir. 1988), though the Third
Circuit has come close. In re Cendant Corp. Securities Litiga‐
tion, 454 F.3d 235, 241 (3d Cir. 2006), holds that to be a “sepa‐
rate document” a document must be “self‐contained and
6 No. 13‐1781
separate from the opinion,” “must note the relief granted,”
and “must omit (or at least substantially omit) the District
Court’s reasons for disposing of the parties’ claims.” A
docket entry might satisfy this test, but maybe not the one in
this case, which states rather than omits the reason for dis‐
missal (“because the statute of limitations has expired”).
The entry was required by Rule 77(d), not as a judgment
or an order but simply as a notice. It does not comply with
Rule 58; its purpose is different; and when treated as the
judgment it can confuse. The recipient might inquire and if
so discover that no document constituting a judgment sepa‐
rate from the judge’s opinion had been entered and might
wonder therefore whether the 30‐day period for filing an
appeal had yet begun to run. The clerk could without diffi‐
culty have complied with Rule 58, as all that compliance re‐
quires is filling out form AO 450, or Forms 70 or 71 if he pre‐
fers. We should not allow a Rule 77(d) notification to do ser‐
vice for a Rule 58 judgment. Our cases that allow that should
be overruled.
Rule 58 requires not only a separate document but also,
at least when the judgment denies all relief, as in this case,
that the separate document be signed by the court clerk. Fed.
R. Civ. P. 58(b)(1)(C). The docket entry in question in this
case has no line for a signature, no signature, and not even
initials, which would suffice if, unlike the situation in Carter
v. Beverly Hills Savings & Loan Association, 884 F.2d 1186,
1189–90 (9th Cir. 1989), the initials were those of the clerk. So
the docket entry violates Rule 58, and therefore the judg‐
ment date was 150 days after the district court’s decision.
The appeal is therefore timely and should proceed to brief‐
ing on the merits of the district court’s decisions to dismiss
No. 13‐1781 7
Brown’s complaint and to deny her post‐trial motion under
Fed. R. App. P. 4(a)(4)(A)(vi), (B) for relief, under Rule 60 of
the civil rules, from the dismissal of the complaint.
Fed. R. App. P. 27(c), provides that “a circuit judge may
act alone on any motion, but may not dismiss or otherwise
determine an appeal or other proceeding.” See also 7th Cir.
Operating Proc. 1(a)(1). My ruling that the appeal shall pro‐
ceed to briefing on the merits of the appeal does not “deter‐
mine” the appeal or even determine our appellate jurisdic‐
tion. The three‐judge panel assigned to hear the appeal will
be authorized to revisit and if it wants reject my conclusion
that the appeal is within this court’s jurisdiction.