# McCalden v. California Library Ass'n > Court of Appeals for the Ninth Circuit · November 20, 1990 · 955 F.2d 1214 URL: https://www.frixlaw.com/law-library/cases/8996867 ## Case - **Full name:** Viviana McCALDEN v. CALIFORNIA LIBRARY ASSOCIATION, City of Los Angeles, American Jewish Committee, Marvin Hier, Simon Wiesenthal Center, Inc., Westin Hotel Company, dba Westin Bonaventure Hotel - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** November 20, 1990 - **Citations:** 955 F.2d 1214; 1990 WL 323068 - **Precedential status:** Published - **Opinion:** Dissent by Fletcher - **Judges:** Alarcon, Fletcher, Kozinski, Nelson, Noonan, Norris, Reinhardt, Whom - **Cited by:** 129 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Harmston v. City and County of San Francisco. - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8996867 ## How later opinions describe it (automated extraction) - holding that, although Rule 12(b)(6) motions are not generally intended to address the merits of affirmative defenses, in the limited circumstances when the complaint gives rise to one, the defense may be raised under Rule 12(b)(6), as long as it appears clearly on the face of… - holding that a complaint may be dismissed on the basis of an affirmative defense 18 if the defense clearly appears by the face of the complaint - holding that allegations should not be construed as an admission against inconsistent claims - concluding that when the district court failed to enter a separate judgment, the time for filing a notice of appeal never began to run and the appeal was therefore timely - holding that an order dismissing the case did not satisfy Rule 58’s separate document requirement because the order was never entered as a separate document ## Opinion text FLETCHER, Circuit Judge, dissenting: I respectfully dissent. We should not reach the merits of this appeal. Rule 4 requires that an appellant file a notice of appeal within 30 days after a final judgment has been entered in accordance with Fed.R.Civ.P. 58. Fed.R.App.P. 4(a)(1), (6). Absent a timely filed notice of appeal, we have no jurisdiction. Miller v. Sumner, 872 F.2d 287 (9th Cir.1989); Rodgers v. Watt, 722 F.2d 456 (9th Cir.1983) (en banc). The district court dismissed McCalden’s last claim on March 31, 1987, almost a full year before McCalden filed his notice of appeal. Moreover, the district court, by order on July 30, 1987, more than seven months before McCalden filed his appeal, explicitly informed McCalden that the order entered on March 31, 1987 unquestionably and finally disposed of his case and that the court would issue no further judgment. At the very latest, McCalden was obligated to file his notice of appeal within 30 days of this order. McCalden’s notice of appeal at a minimum was filed almost six months too late. The majority holds that the 30-day period for filing an appeal never began to run because the district court failed to enter a final judgment that met the requirements of Fed.R.Civ.P. 58. Specifically, the majority finds that the district court failed to set forth its judgment on a separate piece of paper. See Fed.R.Civ.P. 58. This elevates form over policy and; indeed, over all common sense. The purpose of the separate document rule is to ensure that litigants know precisely when a judgment is final. It therefore removes uncertainty about when litigants must file an appeal. See Fed.R.Civ.P. 58 (comment) (separate document requirement instituted to remove uncertainties as to when a judgment is entered); 11 C. Wright & A. Miller, § 2781, at 6 (1973) (describing purpose of Rule 58). The order denying McCalden’s request for entry of judgment, entered by the district court on July 30, 1987, fulfills this purpose. 1 It communicates precisely the information that a final judgment is supposed to communicate only it does so explicitly. First, it states that the judgment of the district court with respect to all claims is final. Second, it explicitly denies appellant’s request for an entry of judgment, and thereby clearly notified McCalden that no further judgment would issue. Once this order was entered, McCalden knew the district court case was over; he had absolute *1226 ly no reason to delay filing his appeal. His only possible uncertainty was that he might already be too late. Although the July 30 order does not expressly direct entry of judgment on the dismissed claims, it explains that this has already happened. To find this insufficient, indeed, does inappropriately “ele-vat[e] ... form over substance.” Hamilton v. Nakai, 453 F.2d 152, 155 (9th Cir.1971); see also United States v. Perez, 736 F.2d 236, 238 (5th Cir.1984) (per curiam) (“We are not required to ‘mindlessly’ apply Rule 58”); Weinberger v. United States, 559 F.2d 401, 402 (5th Cir.1977) (same). In the Supreme Court’s words, “[a] pragmatic approach to the question of finality has been considered essential to the achievement of the ‘just, speedy, and inexpensive determination of every action ...,’” Brown Shoe Co. v. United States, 370 U.S. 294, 306 , 82 S.Ct. 1502, 1513 , 8 L.Ed.2d 510 (1962). McCalden knew his July 30, 1987 case was over and that the order was the final piece of paper the district court would enter. He should have filed his notice of appeal not later than August 30,1987. Yet he waited until February of 1988. We should dismiss the appeal for lack of jurisdiction. . The July 30, 1987 Order stated, in relevant part: “By this order [the March 24, 1987 order dismissing McCalden’s fourth claim], the court dismissed with prejudice all of plaintiffs actions against all of the defendants, except for the City of Los Angeles. Although the above orders dismissing the action with prejudice as to certain claims and certain defendants may not be deemed final without certification pursuant to Rule 54(b), an order of dismissal may be treated as final if the remaining claims have been finalized by subsequent developments.... Here, subsequent to the issuance of the orders of February 6 and March 24 dismissing certain claims and certain defendants, plaintiff voluntarily submitted a stipulation entered into with the remaining defendant, the City of Los Angeles to dismiss the action pursuant to F.R.Civ.P. 41(e). This court signed the stipulation on March 26, 1987. The clerk’s office filed the order on March 30, 1987 and entered the order on March 31, 1987. Therefore, after the issuance of this order, there were no remaining claims nor defendants to the action. Although plaintiff would not have been able to appeal his own voluntary dismissal of the last defendant, plaintiff could and should have filed his notice of appeal with respect to the court’s orders of February 6 and March 24th shortly after he filed the stipulation dismissing the remaining claims and defendant in this action.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8996867. Public record. Not legal advice.