Petition for Writ of Certiorari — USIC, LLC, Petitioner v. Northern Illinois Gas Company

No. 23-_____

In the

Supreme Court of the United States

USIC, LLC,

v.

Petitioner,

NORTHERN ILLINOIS GAS COMPANY

d/b/a NICOR GAS COMPANY,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN D. MOONEYHAM

GM LAW PC

1201 Walnut Street

Suite 2000

Kansas City, MO 64106

(816) 471-7700

(816) 471-2221 fax

BenM@gmlawpc.com

DAVID B. HELMS

Counsel of Record

GM LAW PC

8000 Maryland Avenue

Suite 1060

St. Louis, MO 63105

(314) 474-1750

(816) 471-2221 fax

DavidH@gmlawpc.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. If a federal court of appeals construes a filing

below as a postjudgment motion tolling the time

for appeal, does that court have authority to

reverse a district court’s decision based on an

argument that was presented for the first time

in the “postjudgment motion” and was not

based on new evidence or a change in law?

2. Does a final order exist under 28 U.S.C. § 1291

and Federal Rule of Civil Procedure 58 where

the district court grants summary judgment

without an accompanying opinion and asks one

of the parties to submit a proposed order?

ii

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

The parties to the proceeding are listed on the

front cover.

Petitioner USIC, LLC is a limited liability

company established under the laws of Delaware,

whose sole member is USIC Holdings, Inc., which is

not publicly traded. USIC, LLC does not issue stock,

and, therefore, no publicly held corporation owns 10%

or more of USIC, LLC’s stock.

iii

STATEMENT OF RELATED CASES

No cases are “directly related” to this

proceeding as defined in Supreme Court Rule

14.1(b)(iii). For the sake of disclosure, the subject

matter of the lawsuit below relates to indemnification

and defense regarding separate proceedings in Illinois

State Court:

•

Michael J. Smith, et al. v. Metro

Fibernet,

LLC,

et

al.,

Case

No. 2017L000121, Circuit Court of the

12th Judicial Circuit, Will County,

Illinois

•

Wespark Condo. Ass’n a/k/a Wespark

Freedom Condos., et al. v. Metro

Fibernet, LLC, Case No. 2018L000302,

Circuit Court of the 12th Judicial

Circuit, Will County, Illinois

Both cases remain pending, and no final

judgments have been entered.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED CASES ...................... iii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR A WRIT OF CERTIORARI..............1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTES INVOLVED .............................................1

INTRODUCTION ........................................................2

STATEMENT OF THE CASE ....................................4

A.

The course of proceedings and

disposition in the District Court ............4

B.

Nicor’s appeal and the Eleventh

Circuit’s decisions ..................................5

REASONS FOR GRANTING THE PETITION..........7

v

I.

II.

Summary reversal is warranted because

the Eleventh Circuit ignored precedent

from this Court regarding the permitted

scope and function of Rule 59(e) motions,

and its decision also contradicts every other

circuit’s precedent .............................................7

A.

The Eleventh Circuit overstepped its

authority by reversing the District

Court on an issue that was not

presented

during

summary

judgment briefing ...................................7

B.

No latent exception to this firm rule

justifies the Eleventh Circuit’s

departure ..............................................10

Alternatively, the Eleventh Circuit’s

decision can only be rationalized by

interpreting it as having deemed the March

2019 Order to be nonfinal, which creates a

circuit split in practice ....................................12

A.

The March 2019 Order disposed of all

substantive issues but did not

include the court’s reasoning ...............13

B.

The weight of authority from other

circuits holds that an intent to issue

a later opinion does not affect finality

..............................................................15

vi

C.

A clerk’s entry or minute order, as in

this case, triggers the 150-day period

under Rule 58 and Appellate Rule 4 ...17

CONCLUSION ..........................................................21

APPENDIX

Appendix A

Opinion in the United States

Court of Appeals for the Eleventh

Circuit

(April 18, 2023) ........................ App. 1

Appendix B

Opinion and Order in the United

States District Court for the

Northern District of Georgia

(September 2, 2021) ............... App. 37

Appendix C

Minute Sheet for Proceedings

held in the United States District

Court for the Northern District of

Georgia

(March 29, 2019) .................... App. 65

Appendix D

Order Denying Petition for

Rehearing and Petition for

Rehearing En Banc in the United

States Court of Appeals for the

Eleventh Circuit

(July 17, 2023)........................ App. 67

vii

TABLE OF AUTHORITIES

Cases

A&C Constr. & Installation, Co. WLL v. Zurich Am.

Ins. Co., 963 F.3d 705 (7th Cir. 2020) ............... 9, 12

Agrawal v. Bd. of Regents of the Univ. of Okla.,

336 F. App’x 765 (10th Cir. 2009).......................... 19

Ass’n of Am. Physicians & Surgeons, Inc. v. Am. Bd.

of Med. Specialties, 15 F.4th 831 (7th Cir. 2021).. 16

Banister v. Davis,

140 S. Ct. 1698 (2020) ...................................... 7, 8, 9

Barnhardt Marine Ins., Inc. v. New England Int’l

Sur. of Am., Inc.,

961 F.2d 529 (5th Cir. 1992) .................................. 20

Burnley v. City of San Antonio,

470 F.3d 189 (5th Cir. 2006) ............................ 18, 19

Cehovic-Dixneuf v. Wong,

895 F.3d 927 (7th Cir. 2018) .................................. 11

Center for Nuclear Responsibility, Inc. v. U.S.

Nuclear Regulatory Comm’n,

781 F.2d 935 (D.C. Cir. 1986) ................................ 17

Cumberland Mut. Fire Ins. Co. v. Express Prods.,

Inc., 529 F. App’x 245 (3d Cir. 2013) ............... 16, 17

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) .............................................. 8, 9

viii

Freudensprung v. Offshore Tech. Servs., Inc.,

379 F.3d 327 (5th Cir. 2004) .................................. 13

Grange Mut. Cas. Co. v. Slaughter,

958 F.3d 1050 (11th Cir. 2020) ................................ 9

Hall v. Hall,

138 S. Ct. 1118 (2018) ...................................... 13, 14

Hamer v. Neighborhood Hous. Servs. of Chicago,

138 S. Ct. 13 (2017) ................................................ 16

Johnson v. Wilson,

118 F.2d 557 (9th Cir. 1941) .................................. 17

Kona Enters., Inc. v. Estate of Bishop,

229 F.3d 877 (9th Cir. 2000) .............................. 9, 11

Ludgood v. Apex Marine Corp. Ship Mgmt.,

311 F.3d 364 (5th Cir. 2002) .................................. 17

Luginbyhl v. Corr. Corp. of Am.,

216 F. App’x 721 (10th Cir. 2007).................... 19, 20

Marseilles Homeowners Condo. Ass’n, Inc. v. Fidelity

Nat’l Ins. Co., 542 F.3d 1053 (5th Cir. 2008) .......... 9

Orr v. Plumb,

884 F.3d 923 (9th Cir. 2018) ............................ 14, 18

Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,

148 F.3d 396 (4th Cir. 1998) .................................... 9

Quality Cleaning Prods. R.C., Inc. v. SCA Tissue

N. Am., LLC, 794 F.3d 200 (1st Cir. 2015) ............. 9

ix

Rajkovic v. Fed. Bureau of Investigation,

949 F. Supp. 2d 139 (D.D.C. 2013) ........................ 20

Sault Ste. Marie Tribe of Chippewa Indians v.

Engler, 146 F.3d 367 (6th Cir. 1998) ................. 9, 11

United States v. Bradley,

882 F.3d 390 (2d Cir. 2018) ................................... 16

United States v. F.E.B. Corp.,

52 F.4th 916 (11th Cir. 2022) .................................. 9

United States v. Sineneng-Smith,

140 S. Ct. 1575 (2020) .............................................. 8

Vergara v. City of Chicago,

939 F.3d 882 (7th Cir. 2019) ............................ 16, 19

Walker v. Weatherspoon,

900 F.3d 354 (7th Cir. 2018) ...................... 15, 16, 19

Statutes

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 1291 .............................. 1, 2, 13, 14, 18, 19

O.C.G.A. § 13-8-2(b)................................. 4, 5, 6, 11, 12

Rules

Fed. R. App. P. 4 ...................................... 13, 17, 18, 19

Fed. R. App. P. 4(a)(7)(A)(ii) ...................................... 13

Fed. R. Civ. P. 54(a) ................................................... 14

x

Fed. R. Civ. P. 54(b) ................................................... 13

Fed. R. Civ. P. 58 ............................. 2, 3, 13, 17, 18, 20

Fed. R. Civ. P. 58(b)(1) .............................................. 18

Fed. R. Civ. P. 58(c)(2) ............................................... 19

Fed. R. Civ. P. 58(c)(2)(B) .......................................... 13

Fed. R. Civ. P. 59(e) ............................... 5, 6, 7, 8, 9, 12

Fed. R. Civ. P. 79 ....................................................... 18

Fed. R. Civ. P. 79(a) ............................................. 18, 19

Sup. Ct. R. 10(a) ........................................................ 10

1

PETITION FOR A WRIT OF CERTIORARI

USIC, LLC petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the Eleventh Circuit (App. A) is

available at 2023 WL 2977784. Its order denying

USIC, LLC’s petition for rehearing (App. D) is

unreported. The summary judgment order of the

district court (App. C) is unreported. The opinion of

the district court making findings of fact and

conclusions of law (App. B) is available at 2021 WL

3931863.

JURISDICTION

The Eleventh Circuit issued its opinion on April

18, 2023. The same court issued an order denying

Petitioner’s timely petition for panel rehearing or

rehearing en banc on July 17, 2023. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

28 U.S.C. § 1291:

The courts of appeals (other than the

United States Court of Appeals for the

Federal Circuit) shall have jurisdiction of

appeals from all final decisions of the

district courts of the United States, the

United States District Court for the

2

District of the Canal Zone, the District

Court of Guam, and the District Court of

the Virgin Islands, except where a direct

review may be had in the Supreme Court.

The jurisdiction of the United States

Court of Appeals for the Federal Circuit

shall be limited to the jurisdiction

described in sections 1292(c) and (d) and

1295 of this title.

INTRODUCTION

The Eleventh Circuit set a precarious standard

in attempting—and failing—to avoid a jurisdictional

problem. The problem concerns the intersection of the

“separate document rule” with the common practice of

district courts postponing a memorandum opinion

following a decision. When a court issues a ruling

resolving all claims but states that an opinion will

follow later, does the initial ruling constitute a “final”

judgment or order under Federal Rule of Civil

Procedure 58? Decisions from the Second, Third, Fifth,

and Seventh Circuits all agree that it does. The

District Court below disagreed.

The Eleventh Circuit tried to avoid deciding the

issue, but its merits decision makes sense only as a de

facto split from the other circuits because it relies on a

purported tolling mechanism that is facially

inconsistent with its basis for reversing the District

Court. In short, the Eleventh Circuit’s decision

represents either a blatant disregard for binding

precedent concerning review of postjudgment motions

3

or a pathbreaking split over appellate jurisdiction.

Either way, it merits this Court’s review.

The jurisdictional issue carries significance for

litigants in all federal courts because it relates to the

time limits for a party to appeal a final judgment.

Litigants often expect that, per Rule 58, dispositive

rulings will be issued through a written opinion

followed by a judgment denominated on a separate

document. When the opinion explaining the decision

follows long after the ruling hits the docket, neither of

which is titled a “judgment,” it creates confusion about

which document triggers the appeal clock.

This Court has never addressed this precise

issue, which may be in part why so many district

judges continue to engage in the practice of resolving

cases (reducing their statistical tally of “unresolved”

cases) while waiting to issue the formal opinion

explaining the judge’s reasoning. The District Court

below waited 887 days after granting summary

judgment to Petitioner USIC, LLC (“USIC”) until it

issued its full opinion—essentially two and a half

years of radio silence—even though USIC had

submitted a proposed order within 24 days of the

court’s ruling, and the final opinion made only

minimal changes to that proposed order.

For the reasons explained below, the Eleventh

Circuit’s response to this messy situation only

confuses the issues rather than leaving the parties

and other litigants with clarity. Furthermore, the

Eleventh Circuit’s grounds for reversal cannot be

supported under any reasonable interpretation of the

4

rules governing postjudgment motions and timely

appeals. Therefore, this Court should exercise its

supervisory power to reverse the Eleventh Circuit.

STATEMENT OF THE CASE

A.

The course of proceedings and

disposition in the District Court.

This is a contractual indemnity and defense

suit brought by Respondent Northern Illinois Gas

Company (“Nicor”) against USIC. Nicor contends that

USIC owes both a duty to defend and a duty to

indemnify Nicor in litigation currently pending in

Illinois. The key contract provision at issue is

Paragraph 9.1 of the Master Locating Services

Agreement (the “Agreement”), which states that USIC

“shall defend, indemnify, and hold harmless” Nicor in

certain circumstances. App. 4.

Following full briefing and a hearing, the

District Court granted summary judgment to USIC on

all claims, ruling that Georgia statute O.C.G.A.

§ 13-8-2(b) invalidated Paragraph 9.1. This decision

was reflected in both an oral ruling and a minute entry

entered by the clerk on the same day. App. C (the

“March 2019 Order”). The District Court asked USIC

to prepare a proposed order “consistent with” its

ruling that cited the applicable facts and law from

USIC’s briefs. App. 65; D. Ct. Dkt. #61-1 at 29:24–

30:6.

USIC submitted its proposed order on April 22,

2019. App. 10. Nicor filed objections to the proposed

order (“Objections”), arguing that USIC had failed to

5

accurately capture the scope and reasoning of the

District Court’s summary judgment decision. Even

though the District Court had already granted

summary judgment, Nicor argued for the first time in

its Objections that a severability clause in the

Agreement prevented O.C.G.A. § 13-8-2(b) from

invalidating the entire Paragraph 9.1. (Both Nicor and

the Eleventh Circuit concede that Nicor raised this

argument for the first time in the Objections. App. 31

n.12.)

The District Court entered an Opinion and

Order on September 2, 2021, substantially adopting

USIC’s proposed order. App. B (the “September 2021

Opinion”). The September 2021 Opinion does not

address Nicor’s severability argument. Nicor filed its

notice of appeal on September 29, 2021. App. 15.

B.

Nicor’s appeal and the Eleventh

Circuit’s decisions.

Based on the 915-day gap between the March

2019 Order granting summary judgment and Nicor’s

appeal, and the asserted lack of a tolling postjudgment

motion, USIC challenged appellate jurisdiction in the

Eleventh Circuit. A motions panel of the Eleventh

Circuit denied USIC’s Motion to Dismiss. USIC raised

the same challenges to jurisdiction in its Appellee

Brief. The merits panel adopted the same reasoning as

the motions panel, concluding that jurisdiction exists

by construing Nicor’s Objections as a Rule 59(e)

motion:

6

We have yet to determine whether an

oral ruling coupled with a minute entry

onto the civil docket counts as a

judgment that triggers the 150-day clock

for entry of a judgment and the 30-day

appeal period. And we need not do so

today. Instead, even assuming that the

March 2019 oral ruling was a final order

that Nicor could appeal, and the minute

entry was an entry of judgment, we

construe Nicor’s Objections to

USIC’s Proposed Order as a Rule

59(e) motion for reconsideration.

App. 15 (emphasis added).

On the substantive merits, the Eleventh Circuit

affirmed the District Court’s judgment regarding

application of O.C.G.A. § 13-8-2(b) to the duty to

defend, but it reversed with respect to the duty to

indemnify. The sole basis for reversal was that the

District Court failed to remove specific words from

sentences in the middle of Paragraph 9.1 pursuant to

a severability clause that Nicor did not mention until

after the District Court had granted summary

judgment. App. 30–36.

Despite acknowledging that “Nicor did not raise

its severability arguments during the summaryjudgment proceedings,” the Eleventh Circuit

determined that these arguments could properly be

considered in the first instance on appeal because

“Nicor did raise these arguments in its Objections to

USIC’s Proposed Order [i.e., a Rule 59(e) motion]” and

7

therefore “the issue was raised in the district court.”

App. 31 n.12. This directly conflicts with prior

precedent of this Court and other circuit courts.

USIC timely filed a petition for panel rehearing

or rehearing en banc on May 8, 2023, explaining that

a reversal on the merits could not follow from the

premises the court had adopted, and that an

alternative basis for reversal—finding the March 2019

Order to be nonfinal—would create a circuit split. The

Eleventh Circuit denied USIC’s petition without

explanation on July 17, 2023. App. 68.

REASONS FOR GRANTING THE PETITION

I.

Summary reversal is warranted because

the Eleventh Circuit ignored precedent

from this Court regarding the permitted

scope and function of Rule 59(e) motions,

and its decision also contradicts every

other circuit’s precedent.

A. The Eleventh Circuit overstepped its

authority by reversing the District

Court on an issue that was not

presented during summary judgment

briefing.

This Court has defined Rule 59(e)’s specific and

narrow purpose—it “gives a district court the chance

to rectify its own mistakes in the period immediately

following its decision.” Banister v. Davis, 140 S. Ct.

1698, 1703 (2020) (quotation marks omitted). Within

that framework, however, “courts will not address new

arguments or evidence [in a Rule 59(e) motion] that

8

the moving party could have raised before the decision

issued.” Id. Those statements echo this Court’s earlier

guidance that “Rule 59(e) permits a court to alter or

amend a judgment, but it may not be used to relitigate

old matters, or to raise arguments or present evidence

that could have been raised prior to the entry of

judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471,

486 n.5 (2008) (quotation marks omitted).

That boundary on the scope of Rule 59(e)

motions dovetails with another judicial principle

described by this Court: the “party presentation

principle,” which assigns to parties the obligation to

frame the issues for decision, rather than expecting

courts to search the facts and law for proper

resolution. See United States v. Sineneng-Smith, 140

S. Ct. 1575, 1579–82 (2020). In the context of this case,

under the party presentation principle courts should

defer to the adversarial process to properly frame the

issues at summary judgment rather than allowing

appellate second-guessing.

The Eleventh Circuit’s opinion is difficult to pin

down because its reasoning is not consistent—

reminiscent of Schrödinger’s cat, the Eleventh Circuit

treated Nicor’s Objections as both a Rule 59(e) motion

and not a Rule 59(e) motion. Its jurisdictional analysis

hinged on that construction, yet when turning to the

merits, the court applied de novo review to its entire

opinion, App. 11–12, even though the court’s own

precedent makes clear that the denial of a Rule 59(e)

motion is reviewed for abuse of discretion and that

such discretion is never abused when rejecting a new

argument that could have been raised earlier.

9

See, e.g., United States v. F.E.B. Corp., 52 F.4th 916,

933 (11th Cir. 2022); Grange Mut. Cas. Co. v.

Slaughter, 958 F.3d 1050, 1059 (11th Cir. 2020).

The Eleventh Circuit and Nicor conceded that

Nicor presented its severability argument for the first

time in its Objections, and the Eleventh Circuit

concluded that the District Court implicitly denied

Nicor’s “Rule 59(e)” Objections when it issued its

September 2021 Opinion. App. 17, 31 n.12. Therefore,

any review of arguments first made in the Objections

should have been treated as review from the denial of

a Rule 59(e) motion, consistent with this Court’s

guidance in Banister and Exxon Shipping.

By ignoring this well-established rule, the

Eleventh Circuit acted contrary to not only this

Court’s precedent but every other circuit to have

addressed the issue. See, e.g., A&C Constr. &

Installation, Co. WLL v. Zurich Am. Ins. Co., 963 F.3d

705, 709 (7th Cir. 2020); Quality Cleaning Prods. R.C.,

Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 207–08

(1st Cir. 2015); Marseilles Homeowners Condo. Ass’n,

Inc. v. Fidelity Nat’l Ins. Co., 542 F.3d 1053, 1058 (5th

Cir. 2008); Kona Enters., Inc. v. Estate of Bishop, 229

F.3d 877, 890–91 (9th Cir. 2000); Sault Ste. Marie

Tribe of Chippewa Indians v. Engler, 146 F.3d 367,

374 (6th Cir. 1998); Pac. Ins. Co. v. Am. Nat’l Fire Ins.

Co., 148 F.3d 396, 403–04 (4th Cir. 1998) (affirming

district court’s conclusion that it had been “clear error”

to grant prior Rule 59(e) motion based on new

argument). USIC has found no decision holding that a

Rule 59(e) motion raising a new but previously

10

available argument may be grounds for reversal of the

district court’s opinion.

The court offered no explanation for its flouting

of this judicial boundary—not even in response to

USIC’s petition for rehearing, which cited more than

a dozen federal decisions highlighting the panel’s

procedural misstep. USIC need not restate the litany

of cases on point. There was and remains no legal

justification for the Eleventh Circuit’s refusal to apply

the law correctly. The panel’s neglect not only robs

USIC of a correct legal outcome but also deprives the

District Court of its proper deference in deciding such

motions in the first instance as well as departing from

the unanimous guidance of the court’s sister circuits

and its own prior precedent.

The rule itself is beyond dispute, and the

Eleventh Circuit’s mess is entirely of its own making.

These circumstances perfectly embody the type of

“depart[ure] from the accepted and usual course of

judicial proceedings” justifying this Court’s exercise of

its supervisory power. See S. Ct. Rule 10(a).

B.

No latent exception to this firm rule

justifies the Eleventh Circuit’s

departure.

In a footnote, the Eleventh Circuit speculated

that Nicor’s failure to raise its severability argument

during the summary judgment proceedings was

“likely because it thought that claims relating to the

duty to indemnify were stayed.” App. 31 n.12. To the

extent that the Eleventh Circuit conjured an exception

11

to the rule described above for when a litigant does not

“anticipate” that a topic may arise in summary

judgment briefing, this too represents a split with its

sister circuits.

As other circuits have held, where the

opportunity existed, the reasons for failing to raise an

argument before an adverse ruling are irrelevant.

See, e.g., Cehovic-Dixneuf v. Wong, 895 F.3d 927, 933

(7th Cir. 2018) (“A party seeking to defeat a motion for

summary judgment is required to wheel out all its

artillery to defeat it.”) (quotation marks omitted);

Kona Enters., 229 F.3d at 890–91 (rejecting parties’

argument that they “had no reason to question the

choice-of-law issue until the district court actually

ruled that their claims were ‘in the nature of

assumpsit’”); Sault Ste. Marie Tribe, 146 F.3d at 374

(rejecting argument that party “did not raise the issue

because they never thought the district court would

determine otherwise. A motion under Rule 59(e) is not

an opportunity to re-argue a case.”).

Nicor had every opportunity to raise the

severability argument before the March 2019 Order,

but it declined for strategic reasons. The Eleventh

Circuit correctly recognized that the District Court

had “ordered the parties to continue with litigation

over the application of O.C.G.A. § 13-8-2(b) to the duty

to defend and the duty to indemnify.” App. 7–8

(emphasis added). Nicor never argued that it “could

not” have raised the severability argument earlier, or

that there was an intervening change of law—there

was not. Instead, Nicor chose an all-or-nothing

approach in the district court, arguing that the

12

Georgia anti-indemnity statute did not apply to the

Agreement at all, rather than argue for severability of

the two contractual duties and risk giving the District

Court a pathway to partial enforceability without a

duty to defend. Nicor abandoned its statutory-scope

argument on appeal, shifting its legal strategy. App.

19 (mentioning both “prongs” of analysis under

§ 13-8-2(b) but discussing only the second).

In short, Nicor chose not to advance the

severability argument during the briefing or hearing

on summary judgment, and it “must live with that

decision.” A&C Constr., 963 F.3d at 709.

For these reasons, the Court should summarily

reverse the Eleventh Circuit and remand for an order

affirming the District Court’s judgment in full.

II.

Alternatively, the Eleventh Circuit’s

decision can only be rationalized by

interpreting it as having deemed the

March 2019 Order to be nonfinal, which

creates a circuit split in practice.

As discussed above, the Eleventh Circuit’s

decision cannot be reconciled with its stated

reasoning. The court declared Nicor’s Objections to be

a Rule 59(e) motion, but that is not how it treated the

arguments in its analysis on the merits. In practice,

the court acted as though the District Court’s March

2019 Order was not a final decision and had no

procedural impact on appellate analysis of the

correctness of the judgment. This de facto treatment

could have significant consequences for future

determinations of the time to appeal an adverse

13

decision because it resurrects the question of what

kinds of decisions are final.

A.

The March 2019 Order disposed of

all substantive issues but did not

include the court’s reasoning.

Assessing whether the March 2019 Order was

final requires first a distinction between different

senses of the word “final.” “[F]inality, appealability of

a judgment, and the separate document requirement

are different concepts, but are often confused.”

Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d

327, 336 (5th Cir. 2004). Under 28 U.S.C. § 1291,

which grants appellate jurisdiction over “final

decisions of the district courts,” a “final decision”

means one that “ends the litigation on the merits and

leaves nothing for the court to do but execute the

judgment.” Hall v. Hall, 138 S. Ct. 1118, 1123–24

(2018) (quotation marks omitted). This contrasts with

a decision that is merely interlocutory and does not

dispose of all the pending claims or substantive issues.

Cf. Fed. R. Civ. P. 54(b).

Additionally, “finality” under § 1291 should not

be confused with “entry of judgment.” Federal Rule of

Civil Procedure 58 and Federal Rule of Appellate

Procedure 4, as amended in 2002, establish that a

“judgment or order” (with inapplicable exceptions) is

deemed entered—triggering the 30-day appeal clock—

on the earlier date when either (1) the judgment is

issued in a separate document, or (2) 150 days have

run from the entry in the civil docket. See Fed. R. Civ.

P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii). The term

14

“judgment,” in turn, “includes a decree and any order

from which an appeal lies.” Fed. R. Civ. P. 54(a). “In

other words, [‘judgment’ means] a final order or

decision [under § 1291].” Orr v. Plumb, 884 F.3d 923,

928 (9th Cir. 2018).

Thus, under the 2002 federal rule amendments,

a “final” judgment under § 1291 (meaning any decree

or order from which an appeal lies) triggers the 150day clock, and the judgment is “deemed entered”

(starting the 30-day appeal clock) when either the 150

days run out or the judgment is entered in a separate

document. In this case, more than 150 days had

passed before the District Court entered its judgment

on a separate document. Hence, whether the March

2019 Order (App. C) was the type of docket entry that

triggers the running of the 150-day period depends on

whether it was “final” under § 1291.

Nicor and the District Court appear to take the

view that a ruling without an opinion can never be one

that “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.”

Hall, 138 S. Ct. at 1123–24 (quotation marks omitted).

Nicor alleged that during the 887 days between the

ruling and the opinion, it was unsure about the scope

of the District Court’s ruling. And the District Court

itself stated that its decision was not “final” until the

September 2021 Opinion. App. 64. Yet that is a legal

question subject to de novo review.

The focus should be on the result, not the

reasoning. An absence of explanation did not change

the outcome that was announced and entered on the

15

docket in March 2019. The March 2019 Order granted

USIC’s summary judgment motion—it did not state

that the District Court had “provisionally” granted the

motion or that the court was “considering” granting

the motion. App. 66. USIC’s summary judgment

briefing had made clear that USIC sought relief on all

claims, governing both the duty to defend and the duty

to indemnify, and the Eleventh Circuit recognized that

both duties were at issue in the summary judgment

proceedings. App. 7–8. The September 2021 Opinion

made no substantive changes to its decision about

summary judgment and largely adopted the April

2019 proposed order. App. B. Thus, there can be no

question that when the district court granted USIC’s

motion for summary judgment, it disposed of Nicor’s

claims in their entirety.

B.

The weight of authority from other

circuits holds that an intent to

issue a later opinion does not affect

finality.

Every other federal court of appeals to address

a similar situation has held that a later opinion

explaining a decision does not affect the finality of the

earlier decision. For example, in Walker v.

Weatherspoon, 900 F.3d 354 (7th Cir. 2018), the

district court clerk had entered an order granting

summary judgment in favor of the defendants “[f]or

the reasons stated in the Memorandum Opinion and

Order to follow.” Id. at 356. The memorandum opinion

did not come for another 16 months (a brisk pace

compared to this case), and the plaintiff waited to file

its appeal until after that opinion. The Seventh

16

Circuit, however, ruled that the time for appeal

started 150 days after the original docket entry, not

when the memorandum opinion was filed, because “a

plan to provide an explanation does not delay the date

of decision.” Id. Therefore, the appeal was untimely

under the federal rules. 1 Id.; see also Vergara v. City

of Chicago, 939 F.3d 882, 884 (7th Cir. 2019) (holding

that “entry of judgment for appeal purposes occurred

150 days after the judge’s minute order” even though

the order stated that the judge “would later file an

opinion explaining her reasons”); cf. Ass’n of Am.

Physicians & Surgeons, Inc. v. Am. Bd. of Med.

Specialties, 15 F.4th 831, 835 (7th Cir. 2021) (“We

have condemned this practice in the past [delaying an

opinion after a dispositive decision] and do so again

today. This approach may have the benefit of ticking a

case off a list of outstanding motions, but it risks

catastrophe for litigants.”).

Similarly, in United States v. Bradley, 882 F.3d

390 (2d Cir. 2018), the Second Circuit held that “[t]he

fact that the district court reserved the right to explain

its August 20th decision until later . . . does nothing to

prevent the clock from running.” Id. at 394. And in

Cumberland Mut. Fire Ins. Co. v. Express Prods., Inc.,

529 F. App’x 245 (3d Cir. 2013), the Third Circuit

ruled that the district court’s order granting summary

The Seventh Circuit went on to rule that the appellee had

forfeited the issue of untimeliness because it had failed to

properly raise it on appeal. Nonetheless, the court reaffirmed

that the time limitations on appeal are mandatory when properly

raised. Id. at 356–57; see Hamer v. Neighborhood Hous. Servs. of

Chicago, 138 S. Ct. 13, 17 (2017) (“If properly invoked,

mandatory claim-processing rules must be enforced.”).

1

17

judgment was final, despite stating that a “supporting

memorandum is forthcoming.” Id. at 250. The court

held that the later opinion describing the reasoning of

the prior decision “is not a further action undermining

the finality of the order”; rather, it is merely “an

explanatory and subsidiary document explicating and

elaborating upon the order.” Id.

Several other circuits have reached the same

conclusion

under

similar

circumstances.

See, e.g., Ludgood v. Apex Marine Corp. Ship Mgmt.,

311 F.3d 364, 369 (5th Cir. 2002) (holding that appeal

clock runs from judgment designating decision, not

from later-filed memorandum opinion explaining

decision); Center for Nuclear Responsibility, Inc. v.

U.S. Nuclear Regulatory Comm’n, 781 F.2d 935, 938–

39 (D.C. Cir. 1986) (final order that precedes the

opinion explaining it nonetheless starts the time for

appeal); Johnson v. Wilson, 118 F.2d 557, 558 (9th Cir.

1941) (“The reserved right to file an opinion is not

inconsistent with the finality of the judgment.”).

C.

A clerk’s entry or minute order, as

in this case, triggers the 150-day

period under Rule 58 and Appellate

Rule 4.

Although the District Court’s oral ruling from

the summary judgment hearing should be considered

in tandem with its March 2019 docket entry

memorializing that ruling, it is the latter that

constitutes the appealable decision. For unknown

reasons, the District Court ignored its minute entry

when declaring in the September 2021 Opinion that

18

“the instant Opinion and Order makes the Court’s

ruling in this case final, not the oral ruling announced

at the hearing.” App. 64. Similarly, in briefing below,

Nicor mischaracterized the March 2019 decision as

merely an “oral” ruling and advocated a rule that a

clerk’s docket entry (unsigned by the judge) can never

qualify as a “final” order under § 1291. Yet this

suggestion finds no support in the federal rules or case

law.

Excluding clerks’ docket entries from

consideration as final orders would be “diametrically

contrary to the text, purpose and design of the

integrated system established by FRCP 58 and 79 and

FRAP 4” and would conflate § 1291 finality with the

separate document requirement of Rule 58.

See Burnley v. City of San Antonio, 470 F.3d 189, 196

(5th Cir. 2006) (holding that clerk’s docket entry of

general verdict with interrogatories triggered running

of 150-day period); see also Orr, 884 F.3d at 930

(adopting reasoning of Burnley). Rule 58(b)(1) not only

allows but requires a district court clerk, “without

awaiting the court’s direction,” to “promptly prepare,

sign, and enter the judgment when . . . the court

denies all relief.” Fed. R. Civ. P. 58(b)(1). Relatedly,

Rule 79(a) gives clerks an “independent authority and

duty . . . to promptly make the appropriate entry in

the civil docket.” Burnley, 470 F.3d at 196.

Rule 58 and Appellate Rule 4 both expressly

contemplate that a clerk’s docket entry under Rule

79(a) is the type of action that will trigger either the

30-day window for appeal or the 150-day period where

a separate document is required. “Under the [2002]

19

amendments, a judgment or order is generally treated

as entered when it is entered in the civil docket

pursuant to Fed. R. Civ. P. 79(a),” except when Rule

58(a) requires that the judgment be set forth on a

separate document. See Fed. R. App. P. 4, advisory

committee notes, 2002 amendments. When a separate

document is required but has not been entered, “that

judgment or order is not treated as entered until it is

set forth on a separate document (in addition to being

entered in the civil docket), or until the expiration of

the 150 days after its entry in the civil docket,

whichever occurs first.” Id. (emphasis added). Thus,

the 150-day period begins “when the judgment is

entered in the civil docket under Rule 79(a)” and there

is no separate document. Fed. R. Civ. P. 58(c)(2). If a

clerk’s docket entry could never trigger the 150-day

period without a judge’s signature or express

approval, “the [150-day] cap could never begin to run

in the very cases in which it was intended to apply.”

Burnley, 470 F.3d at 196.

Furthermore, several other courts have

explicitly recognized minute entries as final under

§ 1291, including under circumstances almost

identical to the present case. See Walker, 900 F.3d at

356 (minute entry “made by the Clerk” granting

summary judgment and stating that opinion would

follow); Vergara, 939 F.3d at 884 (text-only minute

entry granting motion to dismiss); Agrawal v. Bd. of

Regents of the Univ. of Okla., 336 F. App’x 765, 767 n.1

(10th Cir. 2009) (“When considering whether a

decision is final, our analysis is governed by the

substance of the district court’s decision, not its label

or form.”) (quotation marks omitted); Luginbyhl v.

20

Corr. Corp. of Am., 216 F. App’x 721, 722–23 (10th Cir.

2007) (text-only minute order granting summary

judgment initiated 150-day period under Rule 58);

Barnhardt Marine Ins., Inc. v. New England Int’l Sur.

of Am., Inc., 961 F.2d 529, 531 (5th Cir. 1992);

Rajkovic v. Fed. Bureau of Investigation, 949

F. Supp. 2d 139, 141 (D.D.C. 2013) (text-only minute

order), aff’d by unpublished order, Appeal No. 13-5166

(D.C. Cir. Nov. 14, 2014) (per curiam).

To the extent that the Eleventh Circuit’s

opinion represents a departure from these other

circuits’ decisions regarding the finality of minute

entries preceding opinions, this Court should clarify

the issue to prevent further confusion. The number of

cases in which district courts have entered a minute

order followed by a much-delayed opinion—leading

the Seventh Circuit to “condemn[ ] this practice”—

illustrates the degree to which it causes uncertainty

among parties and turns the attention of courts away

from the merits of appeals. Litigants risk forfeiting

their right to appeal the merits of an adverse

judgment due to circumstances outside their control—

namely, the district court’s style and sequencing of

orders relating to dispositive rulings.

The orderly functioning of the federal court

system warrants a deeper look at this issue, and this

Court should exercise its supervisory authority to

clarify the application of the federal rules to such

circumstances.

21

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for writ of certiorari.

Respectfully submitted,

BENJAMIN D. MOONEYHAM

GM LAW PC

1201 Walnut Street

Suite 2000

Kansas City, MO 64106

(816) 471-7700

(816) 471-2221 fax

BenM@gmlawpc.com

DAVID B. HELMS

Counsel of Record

GM LAW PC

8000 Maryland Avenue

Suite 1060

St. Louis, MO 63105

(314) 474-1750

(816) 471-2221 fax

DavidH@gmlawpc.com

Counsel for Petitioner USIC, LLC

Dated: October 16, 2023