Petition for Writ of Certiorari — Copper v. City of Fargo

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Text

No. 99-

In The

Supreme Court of the United States

— >

October Term, 1999

GILBERT COPPER and ADELE NORBERG,

Petitioners,

VS.

CITY OF FARGO, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS W. CONDIT PETER B. CRARY

Trial Counsel of Record Local Counsel of Record

Suite C-208 1201 12th Avenue North

9403 Kenwood Road Fargo, North Dakota 58102

Cincinnati, Ohio 45242 (701) 280-9048

(513) 985-9333

Attorneys for Petitioners

—

a |

QUESTION PRESENTED

Does the separate document requirement of Rule 58 of

the Federal Rules of Civil Procedure apply to post-judgment

orders intended to commence the appeal periods defined in

Rule 4(a)(1) of the Federal Rules of Appellate Procedure?

PARTIES TO THE PROCEEDING

lhe parties to this Petition are the same parties who were

litigants in the appeal decided by the United States Court of

Appeals tor the Eighth Circuit. They are listed below with

their status as designated during the Fighth Circuit

proceedings.

Petitioners

Gilbert Copper (Appellee/Cross-Appellant)

Adele Norberg (Appellee/Cross-Appellant)

Respondents

City of Fargo (Appellant)

Kevin Niemann (Cross-Appellee)

Sherri Arnold (Cross-Appellee)

TABLE OF CONTENTS

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Parties to the Proceeding...............................:0ceeee i

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ie Sacer scctavarebincieaaboneckidomiasnsayosskonds |

Statement of Jurisdiction ................................00ce. |

Constitutional and Statutory Provisions Involved... 2

IN IN BIN OID iscccsssnsesscseccscsennusasensssnenscooseonns 2

1. Facts underlying the Constitutional §1983 claims = 2

First summary judgment decision and first trial 3

en A a cadepoanabeunaveunsec 3

4. Second summary judgment decision and second

Ba Feat alshdes sdvcderadebsusbinckeivivensaciaks 5

5. Jurisdictional issue raised for first time on appeal

in City of Fargo’s opening brief...................0. 6

6. Comment on Lower Court Decisions................ 7

A. The District Court’s Orders ....................006. 7

B. The Eighth Circuit’s Decision.................... 8

Reasons for Granting the Writ........0.0.00.00.000.000000000... 10

I. Important Question of Federal Law............. 10

A. There is a compelling need for the uniform

application of the separate document

requirement of Rule 58 to all orders which

commence the time for appeal..........0.000000.. 10

B. Mechanical application of the Rule 58

separate document requirement to all orders

intended to commence the 30-day appeal

period of Appellate Rule 4(a) is required by

by the text of the Civil and Appellate Rules

and is supported by this Court’s prior

oc SEES RR IGRI oan Nae TOM 13

II. Conflict in the Circuits................................... 16

A. Circuits that apply the separate document

requirement of Rule 58 to denial of

post-judgment tolling motions................0.... 16

i) IPR Writes Hitec uneccias, 16

Bi, eth idie ase 18

ae MUNA it atececncizi at ples Caren 19

B. Circuits that do not apply the separate

document requirement of Rule 58 to denial

of post-judgment tolling motions ............... 20

‘ams

Ds FRR I iissiccicicsensnectcsicaiguancionioniniones 20

Sikes 21

Se TC naeheseic cst scciceraionce 22

C. Circuits that have not taken a position on

application of the Rule 58 separate

document requirement to denial of

post-judgment tolling motions or which have

inconsistent precedent on the question ....... 23

DSC Ci iicteciccinacs 23

2: FRR icine tictncccken tne 24

3. PO CR isosceles 24

4. FI Sica cteeindkntionies 25

5. FR CE Si icctccccccdscinen cee 26

Ill. Guiding Principles ................0.....e 28

IV. IEA EE LOADER DRA Pea RS RP TN a 30

APPENDIX

Appendix A — Opinion of the United States

Court of Appeals for the Eighth Circuit

FUE IY 28k BOE scchiictciiciccda ee es |

Appendix B — Order of the United States

Court of Appeals for the Eighth Circuit

Pies Atagust 24; 1990 oo.no.ccsccccsscesscdsccccossccecsecceccees 11

Appendix C — Constitutional and Statutory

POWERNIMI DIVINE foi iiiicccced ac 13

Appendix D — Order of the United States

District Court for the District of North Dakota

eee AMEE 84, Tile cisions at ee 21

Appendix E — Order of the United States

District Court for the District of North Dakota

PO MOE FTG ictudaeaa a eet 27

Appendix F — Judgment of the United States

District Court for the District of North Dakota

Better Dhary 10, 1GGS ccissccscchcsccpccseccmeseds coccecdces. 30

Appendix G — Order of the United States

District Court for the District of North Dakota

POE AIR 16, TOES icine 32

Appendix H — Judgment of the United States

District Court for the District of North Dakota

metered Moreh 31, 1908. 37

Vil

TABLE OF CITATIONS

Cases

Acosta v. Louisiana Dept. of H. & H. Res.

EME REI BEE COD ais da cirecdicie vaste catsunahccda: 10

Allen v. Horinek

Oar S20 Ore (10e Cie, 1967) |.......5.060: 5 20

Amoco Oil Co., v. Jim Heilig Oil & Gas, Inc.

786 F. 2d 1163 (6th Cir. 1986)

COVE MI, SI Fh. OB ics sikoesnicsccanclc tues 25, 26

Barber v. Whirlpool Corp.

SOE Se 1 2G CON Cit, NDI) nas svccsesesscsicccndsicannsc, 25

Bankers Trust Co. v. Mallis

435 U.S. 381 (1978) (per curiam)......ccccccccccccccees 15, 25

Caperton v. Beatrice Pocohantas Coal Co.

Fe ee Ot CN Re BRD erivisaccsienasdcvicdccensiaosesas 26

Carter v. Beverly Hills Say. & Loan Ass'n

BUST .28 TEDG CUR Cie, BGDD) access ccciscscicscinsssacens 26

Chambers v. American Trans Air, Inc.

re ae a Cr ia a 20, 21

Charles v. Daley

Fee a ee Cs FE Sivicsetbaccsnsiierinasepn 21

Cloyd v. Richardson

SU Ae ee CE, TOP ins sckcisncsesccchesededicecss 25

Vil

Cooper v. Lown of East Hampton

Fe Fe ee ete IIE visi entsceatisninionsiacssaccinen sce 23

Copper v. City of Fargo

COS Fe FIO COUCH. TODD)... ccsccccsssencccesscaccacsssess 9

Copper v. City of Fargo

905 F.Supp. 680 (D.N.D. 1994) ....0........cccccceseeeees |

Copper v. City of Fargo

Fs FD. FUP CERIO ED, BOO OD cciciisecsnssceracecsanvessens

Diamond by Diamond v. McKenzie,

FOO Oe £28 CP Roh, FO icdccivctscccsenseciencs 12, 18, 19

Fiore v. Washington County Corn. Mental Health Ctr

960 F. 2d 229 (Ist Cir. 1992) (en banc) ...... 11, 15-21, 29

Frisby v. Schultz

Be Ee ic ccacdintae a sels Givi Pa

Gregson v. Government of the Virgin Islands

BFF F.2e Se Oe Es BPP seiitsetisnictirdcrscisiinss 24

Hard yv. Burlington Northern Railroad Cc.

S70 F.20 1454 (Sida Civ. 8SGG) oo cnccccicsscccsscesscccacess 26-28

Hollywood v. City of Santa Maria

$86 F.2d 1228 (9th Cir. 1989).............ccc eee. 27, 28

Hughes v. Halifax County School Board

ZS 2 Bae CC TIF seve kivkecdenienccviscs 24

Kirkeby v. Furness

D2 F 2 Oa NR, FDIS) wan siin sscsesecstcccnrcccaastecsess 5

Marre v. United States

38 F.3d 823 (Sth Cir. 1994) woo 9, 20-21

Navarro Savings Ass'n v. Lee

ERE ae, PE kixeaheescdvkdsivccciveriaracsacdasnesteaianss 28

RR Village Ass'n, Inc. v. Denver Sewer Corp

oe 20 CUE CARB Ce, FOF ia ivieicssvsncctcsivcarncccans, 23

Shalala v. Schaefer

rh FRY 2) | Nir de en Bae RRR er meee 14,15

Stern v. Shouldice

TOG F208 P42 (Gti Cie. PSD) avssicsecscccnicecissisercsiccscnee 25

US. v. Haynes

ES Pe 1S27 C ee. FI ia censvsecctceasviccss 12, 18, 29

United States v. Indrelunas

EE TID: RUE PF a eincccnsisbinerasnrsnceesas 11, 15, 17, 25, 29

United States v. Schaefer Brewing Co.

A a Ae EE a iicastintgsinlddlanminniads 10, 12

Veneklase v. City of Fargo,

78 F.3d 1264 (8th Cir. 1996)... ee eeecete eee 5

Wikoff v. Vanderveld

897 F.2d 232 (7th Cir. 1990) woe... Re

Woods v. Wal-Mart

124 F.3d 219 (10th Cir. 1997) (table).....0.00......... 19, 20

Wright v. Preferred Research, Inc.

PETE de LOO TON AE, PPE asic acess sdk 22

United States Constitution

TON SINE Niet cs ccestucrencts sisvasatncar icoristiaed eee. 2

PONT IN oii itiicicc ee 2

POUrtCerith. APTANA os. cscs eateccceserseeesasevsciaccccates z

Statutes

Os © GET Bc hccicntaccsnlauncoendand tas |

Pee SESE occa a |

Oe PEE saints Hee ee 1-3

Ordinances

Fargo Municipal Code § 10-08 (1985) oo... 2

Rules

Rule 4, Federal Rules of Appellate Procedure

POR RER ERE E ERE REE EEE EERE HEHEHE HEHE EES

Rule 50(b), Federal Rules of Civil Procedure

Rule 52(b), Federal Rules of Civil Procedure

2, 9,14-15, 17, 19, 23, 29

iss

Rule 54(a), Federal Rules of Civil Procedure............... me

Rule 58, Federal Rules of Civil Procedure ................ 2, 9-30

Rule 59, Federal Rules of Civil Procedure 15, 17-18, 23, 27

Rule 60(a), Federal Rules of Civil Procedure ............... 6.8

Rule 60(b), Federal Rules of Civil Procedure............... 17-18

Rule 79(a), Federal Rules of Civil Procedure............ 11,13

Rule 10, Supreme. Couit RIGS. ........0.ccsicssnsssescsasccsesass 10

Other

Moore’s Federal Practice § 58.05[2] (1991)... 29

Moore’s Federal Practice § 110.08[2] (1970)..........08. 15

16A Wright, Miller, and Cooper

Federal Practice and Procedure § 3950.2 (1999)

ae Ae a ea eee ec es ee 10, 13, 16, 28-29

Michael Zachary

Rules 58 and 79(a) of the Federal Rules of Civil

Procedure: Appellate Jurisdiction and the

Separate Judgment and Docket — Entry

Requirements, 60 N.Y.Law.School.L.R. 409

(1996)

= Ghat’

Petitioners Gilbert Copper and Adele = Norberg

respectiully request that a writ of certiorari be issued to

review the judgment of the United States Court of Appeals

for the kighth Circuit in this case.

OPINIONS BELOW

[he opinion of the United States Court of Appeals tor the

bighth Circuit is reported at 184 F.3d 994 (8th Cir, 1999)

(App. A)

The opinion of the district court in Copper vo City of

Furgo, Civ. No. A3-93-130 (D.N.D. March 31, 1998) on

petitioners’ motion for attorney's fees is unreported. The

opinion of the district court in Copper v. City of Fargo, Civ.

No. A3-93-130 (D.N_D. April 10, 1997) on cross-motions for

summary judgment prior to the second trial 1s unreported.

the opinion of the district court on cross-motions for

summary judgment entered prior to the first trial 1s reported at

905 F Supp. 680 (D.N.D. 1994). The district court's

supplemental opinion on municipal lability entered after the

first trial 1s reported at 905 F Supp. 703 (D.N.D. 1995)

STATEMENT OF JURISDICTION

the judgment of the United States Court of Appeals for

the Fighth Circuit was entered on July 22, 1999. A umely

petition for rehearing was denied on August 24, 1999. (App.

8) Original jurisdiction in the district: court: was invoked

under 42 U S.C. § 1983 and 28 U.S.C. § 133

the jurisdiction of this court is invoked under 28 U.S.C.

§$ 125401)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Set forth in Appendix C are U.S. Const. Amendment |:

U.S. Const. Amendment IV; U.S. Const. Amendment XIV,

Section I: 42 U.S.C. § 1983; Rule 4 of the Federal Rules of

Appellate Procedure; Rules 54(a) and 58 of the Federal Rules

of Civil Procedure; and Fargo Municipal Ordinance 10-08

STATEMENT OF THE CASE

F Facts Underlying The Constitutional § 1983 Claims.

On August 20, 1991 Petitioners Gilbert Copper and Adele

Norberg were arrested while they were lawfully and

peacefully picketing in a residential neighborhood in Fargo,

North Dakota. Petitioners were arrested by Respondents

Kevin Niemann and Sherri Arnold, two police officers

employed by Respondent City of Fargo, who charged

Petitioners with violating Fargo's residential picketing

ordinance. (App. C at 19-20). The subsequent prosecution

against the Petitioners in the state courts of North Dakota

resulted in the dismissal of charges on constitutional grounds.

(he state court judge who dismissed the charges specifically

found that the Petitioners had been engaged in

constitutionally protected picketing under the holding of

Frisby v. Schultz, 487 U.S. 474 (1988). On August 18, 1993.

Petitioners filed a Complaint in the United States District

Court for the District of North Dakota seeking damages

against the City of Fargo and police officers Niemann and

Arnold pursuant to 42 U.S.C. § 1983.

F First Summary Judgment Decision and First Trial.

Phe District Court dismissed all claims against Arnold on

summary judgment in 1994, but concluded that Petitioners’

picketing activities Were protected by Frisby and that their

constitutional rights had been violated. However, the District

Court also concluded that a single fact issue remained for

trial, the resolution of which would determine (1) whether

Niemann was entitled to qualified immunity and (b) whether

there was municipal liability under § 1983 for the City of

Fargo. In January 1995, the disputed issue of fact was tried to

a jury, which decided it in a manner which resulted in a

defense verdict in favor of the City but a liability verdict

against Niemann. The jury then awarded $1.00 in damages to

each of the Petitioners.

3. Motion For A New Trial.

Before entering final judgment on the jury verdict, the

District Court concluded that it had given an erroneous jury

instruction (Over Petitioners’ objections) which may have

untairly influenced the jury on both the liability and damages

issues. On April 11, 1995 the District Court entered a Notice

of Intent To Grant A New Trial (App. D), a five page

document which fully explained the Court's reasoning and

concluded:

[he court finds that there are grounds for a new trial and

will order a new trial on all issues presented at the first trial

unless parties elect to decline the opportunity to retry the

case. The parties shall advise the court in writing by May 1,

1995 whether or not they wish to proceed with a new trial.

On May |. 1995, the District Court entered a Clarification

of Intent To Grant A New Irial (App. FE). which noted

Petitioners’ desire

not . to reopen the issue of liability against

Defendant Niemann and intend[ing] instead to move

for a new trial limited to damages against defendant

Niemann and both liability and damages against the

City of Fargo. The court will afford [Petitioners] an

opportunity to present such a motion.

The District Court entered final judgment on the Jury

Verdict on May 10, 1995 (App. F), after which Petitioners

filed a timely Motion For A New Trial And To Alter

Judgment on May 22. 1995, asking the District Court for the

following (alternative) remedies for retrial:

1) Grant summary judgment on liability against all

[Respondents] and conduct a new trial limited to

the issue of damaves;

2) It the Court is still persuaded that a fact issue

remains, grant a new trial on liability and

damages as to [Petitioners] Arnold and the City

of Fargo, and limited to damages against

| Kespondent| Niemann.

On August 14. 1995, the District Court entered a

Memorandum and Order (App. G) a four page opinion which

addressed the Petitioners’ motion and resolved several other

post-trial motions as well. The Court:

a) Declined to alter the judgment by revising its

earlier summary judyment rulings;

b) Denied Petitioners’ request for a new trial on

damages only against Niemann:

c) Stated that it had already ordered a new trial on

terms different than those requested — by

Petitioners;! and

d) Granted Petitioners’ motion for an extension of

time to file an Attorneys’ Fee application until 20

days after final judgment was entered after

"retrial".

4, Second Summary Judgment Decision and Second

Trial.

Before retrial, the United States Court of Appeals for the

highth Circuit decided Veneklase v. City of Fargo, 78 F.3d

1264 (8th Cir. 1996) and Kirkeby v. Furness, 92 F.2d 655

(Sth Cir. 1996), relevant intervening cases which led the

District Court to permit the parties to renew motions for

summary judgment. On April 10, 1997, the District Court

entered a Memorandum and Order granting summary

judgment in Niemann's favor (based on Veneklase) but in

Petitioners’ favor against the City (based on Airkehy). This is

what the District Court said about its prior orders as it

! This characterization by the district court 1s not exactly accurate. A

closer look reveals that what the district court always intended (1.¢ , a new

trial on liability and damages) is exactly what the petitioners sought

against the City of Fargo as an alternative ground for reliet in their

post-trial motion. It is more accurate to say that Petitioners’ motion tor a

new trial was granted in part and denied in part.

reviewed the history of this case in that summary judgment

order:

Following the Jury's verdict. this court vacated the jury's

findings and ordered a new trial. on both liability and

damages issues, because the court found that the "Mitigation

of Damages" Instruction and defendants’ counsel's closing

argument Were misleading to the Jury.

A second trial (limited to damages against the City) was

conducted in August 1997. The jury awarded damages in the

amount of $2,150.00, and the district court later awarded

attorneys’ fees ($67,305.00) and costs ($2,097.94) to

Petitioners. (App. H). In its Memorandum and = Order

awarding attorney's fees, the court stated:

Following the jury verdict [in the first trial], this court

vacated the jurv’s findings and ordered a new trial

because the court found that one of its jury

instructions and defense counsel's closing argument

relating to that instruction were misleading to the jury.

The City of Fargo appealed and Petitioners cross appealed

against the police officers.

5. Jurisdictional Issue Raised For First Time On

Appeal in City of Fargo’s Opening Brief.

Although the City never once suggested in the district

court that the second trial was jurisdictionally defective, it

raised this issue for the first time in its appeal brief filed in

the kighth Circuit on July 22, 1998. On August 5, 1998,

Petitioners filed a motion tor partial remand under Civil Rule

60(a) so that the District Court would have the opportunity to

correct its “oversight or omission" of failing explicitly to

order a new trial. The motion for partial remand was

essentially ignored by the Eighth Circuit.

On July 22. 1999 an Eighth Circuit panel entered an

opinion (App. A) holding that the District Court had never

ordered a new trial, that the August 14, 1995 Order was a

denial of Petitioners’ motion for a new trial, that a separate

document under Civil Rule 58 was not required for disposing

of such a post-trial motion, and that the District Court's

jurisdiction had ended when there was no appeal from the

August 14, 1995 Order.

On August 5, 1999, Petitioners filed a Petition For

Rehearing with Suggestion For Rehearing En Banc. The

Petition was denied per Eighth Circuit Order dated August

24, 1999. (App. B).

6. Comment on Lower Court Decisions

Several comments are necessary to give full context to

what happened below, notwithstanding the narrow issue

presented in this Petition.

A. The District Court’s Orders

The District Court erred only to the extent that its orders

regarding a new trial, taken as a whole, carried a degree of

ambiguity. [he District Court's entries stated its intention to

vrant a new trial (April 11, 1995) (App. D) and clarified that

intention (May 1, 1995) (App. E) prior to entering fina!

judgment (May 10, 1995) (App. F) on the first jury verdict.

Ihe problem arose with the Court's Memorandum and Order

(August 14, 1995) (App. G) deciding Petitioners’ timely

motion for a new trial. which stated (as did several later

opinions) the District Court's belief that it had already

ordered a new trial. What was lacking was an order stating

that the Court "is hereby ordering" a new trial, although no

one seemed misled by that omission. Indeed. all of the parties

litigated the case for two more years until a second trial took

place in August 1997.

Moreover. there was no error in the District Court's

failure to enter a "separate document" under Civil Rule 58.

because clearly the Court did not consider the case to be over.

What other conclusion is possible from the District Court's

grant of Petitioners’ motion to defer an attorney fee

application until after "retrial"?

B. The Eighth Circuit’s Decision

The Eighth Circuit's decision is far more troublesome and

misleading. Within two weeks of first being confronted by

the jurisdictional challenge appearing in the City of Fargo's

appeal brief in July 1998. Petitioners filed a Motion For

Partial Remand under Civil Rule 60(a) so that the District

Court could correct’ its "oversight or omission": ‘e.. its

failure to order (in the present tense) the new trial which

everyone knew was intended. Petitioners provided the Eighth

Circuit with ample precedent for such a remand and there is

no doubt what the District Court would have done given that

opportunity. The Eighth Circuit considered the motion for

nearly four months before deferring a ruling and taking the

motion under submission to be heard with the merits of the

case at oral argument. However, at oral argument the panel

was unaware that such a motion had ever been filed. Even

after the motion was physically displayed by counsel at oral

argument, the panel published an opinion without ruling on

the motion and. worse yet, suggesting that the remand issue

was only raised at oral argument.

There are other mischaracterizations in the Eighth Circuit

opinion which need not be detailed here. All of this

procedural confusion circles back to the subject of this

Petition: the need to observe the separate document

requirement of Civil Rule 58 when entering post-trial orders

intended to commence the appeal periods defined in

Appellate Rule 4(a)(1).

The Eighth Circuit below disposed of this issue as

follows:

The plaintiffs further argue that the district court's

order of August 14, 1995 does not constitute a final

appealable order due to noncompliance with Rule 58

of the Federal Rules of Civil Procedure. Rule 58

requires for entry of a final judgment, the entry of a

separate document, and notation in the docket by the

district court clerk. The plaintiffs' argument fails

because the denial of a motion for a new trial leaving

the old judgment unaffected does not fall under Rule

58. See Marre v. United States, 38 F.3d 823. 825 (5th

Cir. 1994). The district court is not required to issue a

new judgment or enter a separate written order. Id. On

May 10, 1995, the district court signed a document

entitled "Judgment" and the Clerk of the United States

District Court of the District of North Dakota entered

the "Notice of Entry of Judgment" that same day.

Thus, the district court followed the requirements of

Rule 58.

(App. A at 8).

REASONS FOR GRANTING THE WRIT

(he primary reasons for granting the writ go to the core of

this Court's certiorari jurisprudence: (1) the issue presented ts

an important question of federal law, and (2) a significant

split of authority exists in the federal circuits. Supreme Court

Rule 10(a) & (c). As noted by a leading commentator: “The

caselaw is in disarray on how the requirement of entry on a

separate document is to be applied in the context of

postudgment motions.” 16A Charles Alan Wright. Arthur R.

Miller and Edward H. Cooper, Federal Practice and

Procedure § 3950.2, p. 122 (1999).

I. Important Question of Federal Law.

A. There is a compelling need for the uniform

application of the Rule 58 separate

document requirement to all orders which

commence the time for appeal.

[his Court has not previously addressed the specific

question of the application of the Rule 58 separate document

requirement to post-judgment orders, “an important question

of federal law that has not been, but should be, settled by this

Court.” Supreme Court Rule 10(c), and which retlects

splintered disagreement between the circuits. /d., Rule 10(a).

Just as “a direct conflict over the interpretation of the Rules

of Appellate Procedure calls for resolution in this Court.”

Acosta v. Louisiana Dept. of H. & H. Res., 478 U.S. 251, 253

(1986), so does a direct conflict over the Rules of Civil

Procedure. “[S]urely such a commonplace affair as the time

for appeal should not be permitted to breed litigation.” United

States v. Schaefer Brewing Co., 356 U.S. 227, 251 (1958)

(Harlan, J., dissenting).

Si atvanlal

A conflict on an issue such as this is of importance

and concern to every litigant in a federal court, since.

as this case makes clear, the timeliness of appeals, as

well as the timeliness of post-trial motions, may turn

on the question of when judgment ts entered.

l ‘nited States v. Indrelunas, 411 U.S. 216. 218 (1973).

These issues are of some importance to both

appellants and the federal courts as the described

omissions [failure to create separate document and

enter it in the docket] may result in unnecessary

confusion, inefficient} marshalling of judicial

resources, and, most important, delays in obtaining or,

possibly, actual loss of the right to, appellate review.

While it cannot be said that these omissions occur on

a daily basis, their regularity, the mischief they may

cause, and the inconsistent treatment they have

received by the courts and commentators, suggest that

a clear and cogent resolution is needed.

Michael Zachary. Rules 58 and “9(a) of the Federal Rules of

Civil Procedure: Appellate Jurisdiction and the Separate

Judgment and Docket Entry Requirements, 60 N.Y. Law.

School. L.R. 409, 409 (1996).

Two Circuit Courts of Appeal have appointed highly

qualified amici curiae to argue this critical jurisdictional

question that governs the timeliness of appeals. The First

Circuit appointed Hill and Barlow Senior Counsel Gael

Mahony and Harvard Law Professor David Shapiro to advise

it on the matter in Fiore v. Washington County Corn. Mental

Health Ctr., 960 F. 2d 229 (Ist Cir. 1992) (en banc).~ The

D.C. Circuit appointed Deanne Maynard as amicus curlae to

represent an appellant before the court for purposes of

briefing and arguing this issue in C'S. v. Haynes, 158 F.3d

1327 (D.C.Cir. 1998).°

The quality of the amici appointed is indicative of the

importance attached to this issue. This Court has recognized

"the public importance of the proper interpretation and

uniform application of the provisions of the Federal Rules

governing the time within which appeals may be taken|.|"

United States v. Schaefer Brewing Co., 356 U.S. at 230. As

the D.C. Circuit has stated: “[T]he [Rule 58] issues raised in

this matter are recurring and are important for the sound and

orderly administration of justice in this District.” Diamond by

Diamond v. McKenzie, 770 F.2d 225, 226 (D.C.Cir. 1985). A

leading commentator agrees that the rules on entry of

post-judgment orders, being jurisdictional, “should be bright

2 From 1984 to 1991 Mr. Mahony served on the Committee on Rules

of Practice and Procedure of the Judicial Conference of the United States.

He was appointed by Chiet Justice Warren Bur~*r. Professor Shapiro

teaches civil procedure at Harvard Law School and has been a tenured

faculty member there since 1966.

> Deanne Maynard has been editor of the Harvard Law Review and

served as Law Clerk to United States Supreme Court Justice Stephen G.

Breyer in the 1994 term. Assisting her in this assignment were lan

Gershengorn and Ann Kappler. Mr. Gershengorn was a member of the

Harvard Law Review and served as Law Clerk to United States Supreme

Court Justice John Paul Stevens in the 1994 term. Ann Kapler was

editor-in-chief of the New York University Law Review and served as

Law Clerk to United States Supreme Court Justice Harry A. Blackmun

during the 1987 term. Biographical information ts found under Attorney

Profiles at <http://www. martindale.com>.

and clear so that there is no uncertainty about when the time

begins to run.” 16A Wright, Miller and Cooper, Federal

Practice and Procedure § 3950.2. p. 128 (1999).

B. Mechanical application of the Rule 58

separate document requirement to all

orders intended to commence the appeal

periods defined in Appellate Rule 4(a) is

required by the text of the Civil and

Appellate Rules and is supported by this

Court's prior holdings.

Rule 58, Fed. R. Civ. P., states in part: “Every judgment

shall be set forth on a separate document. A judgment is

effective only when so set forth and when entered as provided

in Rule 79(a).” Rule 54(a) states in part: “Judgment” as used

in these rules includes a decree and any order trom which an

appeal lies.”

This interplay between Civil Rules 54(a) and 58 should

alone suffice to establish the requirement of a separate

document even for the denial of a post-trial tolling motion. It

appears, however, from some of the circuit case law

discussed below that semantical differences have

unnecessarily confused the issue.

Simply stated, the problem is this. Some courts construe

an order denying a post judgment motion for a new trial to be

a new final (appealable) judgment which must conform to the

Rule 58 requirement. Other courts construe it to be a

non-appealabale order which has the effect of restarting the

appeal clock on the original appealable final judgment. and

which therefore does not require a Rule 58 separate

document. Sull other courts have unclear or inconsistent

positions.

Fortunately. this Court can end the debate without wading

into that semantical difficulty merely by clarifving and

Imposing a uniform application of Rule 4. Fed R-App.P..

which already answers the question.

Rule 4(a) of the Federal Rules of Appellate Procedure

establishes . . . that a judgment is considered entered

tor purposes of the Rule only if it has been entered in

compliance with Rule 58 of the Federal Rules of Civil

Procedure.

Shalala v. Schaefer, 509 U.S. 292, 302 (1993). Rule 4(a){7)

of the Appellate Rules, upon which the Court relied in

making this statement, id. applies also to post-trial orders

When a motion for new trial is timely filed. the time to

file an appeal trom the judgment runs from “entry of the

order’ disposing of the motion. Rule 4(a)(4), Fed.R-App.P

Entry Defined. A judgment or order is entered for

purposes of this Rule 4(a) when it is entered in

compliance with Rules 58 and 79(a) of the Federal

Rules of Civil Procedure.

Rule 4(a)(7), Fed.R.App.P. According to the plain language

of Appellate Rule 4(a)(7), Rule 58 must be observed in the

entry of an order denying a new trial motion to commence the

time to appeal the judgment itself. “Rule 4(a) theretore

expressly imposes Rule 58's separate document requirement

on denials of motions made under Rules 50(b), 52(b), and

SHb) and (e).” Fiore vy Washington County Com. Mental

Health Ctr, 960 F.2d at 233.4

Although a formal separate document is not required for

an order or judgment to be appealable, Shalala at 303, citing

waiver rule of Bankers Trust Co. v. Mallis, 435 U.S. 381

(1978) (per curiam), observance of Rule 58 is necessary for

the jurisdictional time limits of Appellate Rule 4 to begin

running. In the absence of a Rule 58 conforming judgment or

post-trial order, a potential appellant does not waive his

opportunity to appeal, nor is the case final. “[A] party need

not file a notice of appeal until a separate judgment has been

filed and entered.” Mallis at 385. Rule 58 must be

“mechanically applied.” and may not be modified through

“case-by-case tailoring[.|” /ndrelunas at 221-222. “[Rule 58]

should be interpreted to prevent the loss of the right of

appeal, not to facilitate loss.” Mallis at 386. quoting 9 J.

Moore, Federal Practice §110.08[2], p.120 n.7 (1970).

+ Prior to the adoption of the language of current Appellate Rule

an 7). the previous Appellate Rule 4(a)(6) defined entry of a judgment

or order as entry “in the civil docket.” The sentence was amended in 1979

to call attention to the requirement of Rule 58 of the F.R.C-P. that the

judement constitute a separate document.” Advisory Comm. Notes to

1979 Amendment, Rule 4(a)(6). See Zachary, Rule 58 and 79a), 60

“N.Y Law School L.R. at 414 n.19 for further citations and analysis. Since

1979. the express language of Appellate Rule 4 makes Civil Rule 58 as

applicable to post-judgment orders which restart the appeal clock as to

judements themselves. “The time to file an appeal runs for all parties trom

the entry of the order disposing of the last such remaining mouon{.]”

Appellate Rule 4¢a"4)(A). “Entry” by definition requires compliance with

Rule 58. Appellate Rule 4(a)(7). Civil Rule 58 requires that the judgment

or order im question must be set out in a “separate document . | distinct

from any opimion or memorandum” that supports it. Advisory Comm.

Notes to 1963 Amendment, Rule 58.

Il. Conflict in the Circuits

The holding of the Eighth Circuit in the opinion below,

relying on Fitth Circuit precedent. is in flat contradiction to

leading cases in the First Circuit and D.C. Circuit. This

conflicts not an isolated one, but retlects a general confusion

throughout the federal circuits.

A. Circuits which apply the — separate

document requirement of Rule 58 to denial

of post-judgment tolling motions.

[he tollowing circuits apply the separate document rule

correctly to all post-judgment orders that begin anew the ume

for appeal.

l. First Circuit

“By tar the most comprehensive examination of the

requirement of a separate document for postjudgment

motions, dealing both with denials and grants of those

mouons, is by the First Circuit sitting en banc in Fiore v.

Washington County Community Health Center [960 F.2d 229

(1992)].° 16A Wright, Miller and Cooper, Federal Practice

and Procedure § 3950.2, pp. 127. Although Fiore reviewed

the practice of making a marginal notation on a photocopy to

dispose of a post-trial motion, the court made it clear that a

combined opinion and order also tailed to satistv Rule 58.

Fiore at 235, n.9.

The court held that:

Any’ order denying (as well as _— granting)

post-yudyment 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.”

Id at 239.

In its analysis the court noted the clear language of Rule

4(a)(7), Fed.R.App. P., and stated: “Rule 4(a) therefore

expressly imposes Rule 58's separate document requirement

on denials of [Rule 4(a)(4)] motions.” Fiore at 233.

Reaffirming that the purpose of Rule 58 is to make clear

When the time for appeal starts, the court stated: “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.” Such language collides

with the Eighth Circuit position in this case that the Rule 58

requirement changes depending on whether or not the

original judgment is changed by the post-trial order. As the

First Circuit stated:

[T]he 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.

ld. at 234.

The First Circuit's position is in accord with the text of

the civil and appellate rules as well as /ndre/unas' repudiation

of “case-by-case tailoring” of Rule 58.

(CJonsistency 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

50(b). 52(b), 59(b) and (¢), and 60(b).

Fiore at 2345

2. D.C. Circuit

In Diamond by Diamond v. McKenzie, 770 F.2d 225

(D.C.Cir. 1985), the court noted that “a combined decision

and order” does not satisfy Rule 58. /d. at 230, n.10. Chiet

Judge Robinson, — concurring, stated: “Rule 58's

separate-document requirement bears \ itally on the timeliness

of post-judgment motions and appeals.” /d. at 231.

In US. v. Haynes, 158 F.3d 1327 (D.C.Cir. 1998). the

court applied this reasoning and the related “separate

document” analysis to orders on Rule 60(b) post-judgment

motions. /d at 1328. The appellee argued that the original

final judgment was the only separate document needed and

that any other approach would create “a boon for tardy

Having adopted a blanket rule, the First Circuit then carved out an

exception, inferring finality if a motion for entry of judgment is not made

within three months of the order in question. Fiore at 236. No court or

commentator who has addressed the question agrees with Fiore’s

three-month limit on appealability and this case presents a pertect

example of why it is unworkable

aesoe anal sa,

appellants.” /d. at 1329. The court made short work of these

arguments.

These objections do not come within a country mile

of the sort of incoherence or inconsistency in the

literal language of the rules that . . . would allow a

court to go beyond the rules’ plain meaning.

Id. (citation omitted). The separate document requirement.

the court stated, “is as clarifying in the one context as in the

other.” /d The court “left for another day” the issue of the

relationship of Rule 4(a)(4) tolling motions to Rule 58, but

did “note in this connection that Fed.R.App.P. 4(a)(7)

provides that judgments or orders are deemed entered under

Rule 4 only when entered in compliance with Fed.R.Civ.P.

58.” /d. at 1330. The court allied itself with the First Circuit's

decision in Fiore but held that the Fiore three-month limit on

appealability did not apply. /d. at 1330-1331.

Finally, the court rejected the contention that the district

court's three-page “Memorandum Opinion and Order”

qualified as a separate document under Rule 58. “In light of

Diamond by Diamond, we think it understandable that the

government found itself speechless when invited at oral

argument to explain how, if Rule 58 applied. the

Memorandum Opinion & Order could be thought to qualify.”

Id. at 1331.

a Tenth Circuit

The Tenth Circuit has adopted in an unpublished opinion

the First Circuit's position in Fiore that the separate

document requirement is applicable to all judgments or

orders that start the appeal clock. In Woods v. Wal-Mart, 124

3d 219 (10th Cir. 1997) (table), the court stated that “orders

containing neither a discussion of the court's reasoning nor

any dispositive legal analysis can act as final judgments]. |”

The Tenth Circuit stated further:

There is some controversy whether Rule 58 even

applies to orders denying post-judgment relief.

Compare Fiore v. Washington County Communin

Health Ctr, 960 F.2d 229, 232-34 (Ist Cir. 1992)

= text and policy to apply rule), with ¢ ‘hambers

: American Trans Air, Inc., 990 F.2d 317, 318 (7th

Cir 1993) (relying on analysis of post-judgment

context to hold rule inapposite). But we have applied

it to the denial of a new trial motion, see Allen v

Horinek. 827 F.2d 672. 673 (10th Cir. 1987), and.

“[blecause the underlying principles are closely

analogous,” there is good reason “to adopt a uniform

approach for all orders denying — post- -judgment

motions.” Fiore, 960 F.2d at 232.

Woods v. Wal-Mart, supra, n.3.

B. Circuits which do not apply the separate

document requirement of Rule 58 to denial

of post-judgment tolling motions.

In addition to the Eighth Circuit, the following courts of

appeal do not require entry of a separate document upon

denial of a post-trial tolling motion.

a Fifth Circuit

In Marre v. United States. 38 F.3d 823, 825 (Sth Cir.

1994). the district court disposed of a post-trial tolling motion

‘

by “a written minute entry that was entered in the docket, but

did not issue a written order denying the motion.” /d. While

acknowledging that “Rule 58 clearly requires the entry of a

separate, written order.” id, the Marre court followed three

other circuits in holding that denials of post-trial motions (as

opposed to grants of such motions), do not require a separate.

written order. “The Seventh, Ninth and Eleventh Circuits . .

do not require a separate, written order for the denial of a

post-trial motion.” /d.

p # Seventh Circuit

In Charles v. Daley, 799 F.2d 343 (7th Cir. 1986), the

court stated: “A minute order suffices when the judge denies

a request to alter the judgment, for then the original judgment

remains in effect.” /d. at 347. When the judgment changes as

a result of a post-trial motion, however, the appeal time is

suspended “until the effective judgment is set forth on a

separate sheet of paper.” /d The Seventh Circuit has

approved this reasoning in subsequent cases. See Wikoff v

Vanderveld, 897 F.2d 232, 236 (7th Cir. 1990). In Chambers

v. American Trans Air, Inc., 990 F.2d 317, 318 (7th Cir.

1993), the Seventh Circuit noted its conflict with the First

Circuit.

There is no requirement in this circuit that the order

denying the motion comply with Rule 58. [citations

omitted]. The qualification “in this. circuit” ts

important, because the First Circuit, in a recent en

bane opinion, concluded after careful examination of

the issue that Rule 58 applies to all appealable orders,

including post-judgment orders. Fiore v. Washington

County Community Mental health Center, 960 F.2d

229 (1st Cir. 1992) (en banc).

ee,

3. Eleventh Circuit

The issue in Wright v. Preferred Research, Inc, 937 b.2d

1556 (11th Cir. 1991), was whether an amended judgment

had to comply with Rule 58 and be entered on a separate

document from the original judgment. The court decided to

take “a practical, common sense approach” to this question,

thus freeing itself from the mechanical strictures of Rule 58

Id at 1560. The court ruled that even when a post-trial

motion was granted and the judgment altered. the new

judgment did not have to be set out on a separate document

of its own. The “best choice,” the court said, is to require “no

second document when a district court amends a judgment.”

Id. at 1560-61. Though the court acknowledged that requiring

a new separate document for all changes in a judgment might

enhance certainty “that the ume for appeal has begun to run

anew,” it balked at taking this step.

The logical extension of that reasoning, however, 1s

that Rule 58 requires a new separate document even

when the district court denies a post-judyment

motion. since such a requirement would provide a

signal that the time for appeal has begun to run again.

This interpretation goes far beyond the scope and

purpose of Rule 58 and we decline to adopt It.

Id at 1560.

hae Paved

Bees

ie)

S Circuits which have not taken a position on

application of the Rule 58 separate

document requirement to denial of

post-judgment tolling motions or which

have inconsistent precedent § on the

question.

l. Second Circuit

In RR Village Ass'n, Inc. v Denver Sewer Corp, 826

F.2d 1197 (2nd Cir. 1987), the district court, in response to a

post-judgment motion, vacated its original judgment for

defendants and entered a second Memorandum-Decision

favoring the plaintiffs. Three weeks later the court entered

judgment on its second Memorandum-Decision. The appeal

question was whether the appeal time ran from the second

Memorandum-Decision or from the subsequent judgment. /d

at 1200. In discussing the application of Rule 58 to the grant

of a post-judgment motion, the court stated its result in terms

that applied to all post-judgment tolling motions.

Thus, under Fed.R.App.P. 4(a)(6), an order disposing

of a motion under Fed.R. Civ. P. 59 is not effective

until set forth on a separate document.

Although a one-sentence order denying a motion

satisfies the separate-document requirement, an order

that 1s part of a district court opinion or memorandum

does not.

fd at 1201. However, the Second Circuit’s position is less

clear after Cooper v. Town of East Hampton, 83 F.3d 31. 35

n.3 (2d Cir. 1996) (“We express no view as to the application

of the separate document requirement of Rule 58 to

post-judgment rulings.”)

2. Third Circuit

The Third Circuit has not addressed the question of Rule

58 in the post-judgment context either directly or by

implication through decision in a particular case. However. it

did hold in the context of an original judgment that a

four-page document entitled “Memorandum Opinion and

Judgment,” failed to satisfy Rule 58's separate document

requirement. Gregson v. Government of the Virgin Islands,

675 F.2d 589 (3rd Cir. 1982). Because the 30-day appeal time

never began to run, “the notice of appeal cannot be

untimely.” /d. at 593.

3. Fourth Circuit

The Fourth Circuit appears to agree with the Petitioners’

position in practice without actually saying so. The Fourth

Circuit may indeed be better characterized with the First and

D.C. Circuits. In Hughes v. Halifax County School Board.

823 F.2d 832 (4th Cir. 1987), the district court had entered an

order combining a four-page discussion of a post-trial motion

with a judgment disposing of all claims in the case. Without

articulating a distinction between the application of Rule 58

in the judgment and post-judgment contexts, the Fourth

Circuit found that the district court’s post-trial order violated

the “strict standard” of Rule 58. /d. at 835.

In applying the Rule 58 requirement to a given

situation, the form and content of the document at

issue are determinative. Brevity is an important factor:

NOG LS: bier ta hie ERTS GS als iD,

an order unaccompanied by a long explanation is

likely to be considered a “judgment.”

By contrast, a document which attempts to combine

the court's reasoning and its final disposition is not

likely to be considered a “separate document” under

Rule 58.

The mere fact that the district court used the term

“judgment” repeatedly on the last page of the order is

not dispositive.

Id. See also Barber vy. Whirlpool Corp.. 34 F.3d 1268 (4th

Cir. 1994) (1l-page document, last page of which was an

order dismissing post-trial motions, did not comply with Rule

58 and thus did not trigger appeal time).

4, Sixth Circuit

In Stern v. Shouldice, 706 F.2d 742, 746 (6th Cir. 1983),

the court recognized that according to then appellate rule

4(a)(6), Rule 58's separate document requirement applied to

orders on post-judgment tolling motions. The appeal time ran

from the judgment entered on the post-trial motion and not

from an earlier-filed opinion. In Cloyd v. Richardson, 510 F.

2d 485 (6th Cir. 1975), the court stated that a combined

“Judgment and Order” containing the court's findings and

reasonings did not comply with Rule 58. However, it is also

the position of the Sixth Circuit that the separate document

rule is a “mere technicality” when “appellant was not misled

by the failure to enter a separate judgment.” Amoco Oil Co.,

v. Jim Heilig Oil & Gas, Inc., 786 F. 2d 1163 (6th Cir. 1986).

cert. denied, 479 U.S. 966. This "case-by-case tailoring" of

Rule 58 contradicts /ndrelunas and is contrary to the Mallis

teaching that Rule 58 is always applied to save appeals. not to

forfeit them. See Amoco Oil. supra, (Blackmun. J.. dissenting

from denial of certiorari).

oe Ninth Circuit

“Wherever the rules establish a time requirement that

limits a litigant's ability to obtain relief from a final judgment.

it is imperative that the court provide a clear signal that the

time period within which that relief can be sought has begun

to run.” Carter v. Beverly Hills Say. & Loan Ass'n, 884 F.2d

1186. 1189 (9th Cir. 1989). Ironically. Ninth Circuit case law

has failed to do this.

In Hard v. Burlington Northern Railroad Co., 870 F.2d

1454 (9th Cir. 1989), the court examined the timeliness of an

appeal from a “Memorandum and Order” denying a motion

for a new trial. Even though the notice of appeal was filed 33

days after the “Memorandum and Order” was entered, the

Ninth Circuit held that the appeal was timely.

In the present case the order of the district court

denying the appellant's motion for a new trial was

contained in the last sentence of a nine page

memorandum. We agree with the Fourth Circuit that

“an order... . tacked onto the end of an opinion, no

matter how explicit, simply does not qualify as a

separate document for the purpose of evaluating the

timeliness of an appeal.” Caperton v. Beatrice

Pocohantas Coal Co., 585 F.2d 683, 689 (4th Cir.

1978). Consequently, the trial court's order was not

entered within the meaning of Rule 4(a)(4). and

Hard's appeal was timely filed.

eae

ET A ein NLT eet Si ARIA TEE SS

Id. at 1458.

A mere six months later, however. a different panel.

without mentioning Hard, abandoned the separate document

requirement for orders denying post-judgment motions. In

Hollywood v. City of Santa Maria, 886 F.2d 1228 (9th Cir.

1989), the notice of appeal was filed more than a year after

the denial of the motion for new trial. The district court had

filed a document entitled “Order Denying Plaintiffs New

Trial Motion,” a nine-page explanatory opinion with a

one-sentence order denying the motion tacked onto the end of

the opinion and not entered as a separate document. /d. at

1230. The court agreed that “the separate entry requirement

of Rule 58 applies to orders denying Rule 59 motions,” id. at

1231, but then disagreed that application of Rule 58 to

post-judgment orders required the opinion and the order to be

in separate documents. Despite the clear language of the

Advisory Committee Note to the 1963 amendments to Rule

58. which the panel quoted, it found that a combination

opinion and order was not insufficient in the post-judgment

context “simply because the order contains explanatory

material.” /d.

The court distinguished Rule 58 in the final judgment vs.

post-judgment context as follows:

In the context of final judgments, the requirement that

the dispositive document be distinct from any opinion

serves to eliminate confusion as to which order ends

the litigation.

No comparable risk of confusion exists with respect

to an order denying a motion for new trial where the

order is properly entered on the docket sheet.

Id at 1232. Thus, the court abandoned mechanical

application of Rule 58 in the post-judgment context.

A leading commentator cites the inconsistency between

Hard and Hollywood as one illustration of “disarray” in the

case law “on how the requirement of entry on a separate

document is to be applied in the context of postjudgment

motions.” 16A Wright. Miller and Cooper. Federal Practice

and Procedure § 3950.2, p. 122 (1999).

Il. Guiding Principles

This case is a poster child for the “disarray” and

“confusion” in the lower courts on the application of the

separate document requirement of Rule 58 to post-judgment

orders, and provides the perfect vehicle for eliminating all

existing ambiguities about the procedural requirements for

entry of post-judgment orders which begin anew the ume for

appeal.

The relative simplicity of [a procedural rule] is one of

its virtues. It is of first importance to have a definition

that will not invite extensive threshold litigation over

jurisdiction. although the resulting differentiations of

treatment appear somewhat arbitrary. Jurisdiction

should be as self-regulated as breathing] |

Navarro Savings Ass'n v. Lee, 446 U.S. 458, 464 n.13 (1980)

(citations and quotation marks omitted).

The late Professor Zechariah Chafee. Jr.. of the

Harvard Law School, thought that questions of

jurisdiction should be consistent with “the Bright Line

Policy.” “The boundary between judicial power and

a OS. a ee

nullity should * * * be a bright line. so that very little

thought is required to enable judges to keep inside it.”

The rules on the time for appeal are jurisdictional.

They should be bright and clear so that there is no

uncertainty about when the time begins to run. The

rules announced in Fiore, requiring a_ separate

document in every case where an appeal may be

taken. have that virtue. and they also have the virtue

that they are not burdensome. It is not hard to prepare

a separate document, and once it is known that this is

always required, it can be done quite mechanically.

16A Wright Miller and Cooper, Federal Practice and

Procedure § 3950.2, p. 128 (1999). See also Moore's Federal

Practice, § 58.05[2] at 58-63 & n.23 (1991) (When a

post-judgment motion is denied, “the better practice would be

to tollow the separate document requirement . . . .”).

When a court issues a combined memorandum and order

to resolve a post-trial motion, it is and should be a signal to

the litigants that the case is not over. Likewise, when the

court issues a post-trial order in a separate document apart

from its reasoning or analysis, the litigants are properly on

notice that the me for appeal has commenced. This “bright

line” rule. required by the language of Appellate Rule 4.

supported by the cogent analysis of Fiore and Haynes, and

recommended by Wright, Miller and Cooper, should be

unambiguously imposed by this Court as a strict requirement

for all post-trial orders intended to commence the appeal

periods defined in Appellate Rule 4(a)(1). As this Court

stated in 1973: “[T]he separate document provision of Rule

58 is... a mechanical change that must be mechanically

applied”. United States v. Indrelunas, 411 U.S. at 221-22

(citation and quotation marks omitted).

—_)

IV. Conclusion

Because (1) the issue of the application of Civil Rule 58 to

post-judgment orders is one that affects almost all litigants in

federal court and (2) the circuits are in “disarray” and

“confusion” on this question, the petition for writ of certiorari

should be granted in the interest of providing uniform

procedural direction for measuring the timeliness of appeals

in the federal court system.

Respectfully submitted,

THOMAS W. CONDIT

Trial Counsel of Record

Suite C-208

9403 Kenwood Road

Cincinnati, Ohio 45242

(513) 985-9333

PETER B. CRARY

Local Counsel of Record

1201 12th Avenue North

Fargo, North Dakota 58102

(701) 280-9048

Attorneys for Petitioners

APPENDIX

Appendix A — Opinion of the United States

Court of Appeals for the Eighth Circuit

PAN FOE BE RTP viccceissidbdieuctoburaadsiainn l

Appendix B — Order of the United States

Court of Appeals for the Eighth Circuit

Pe NE Bie FM eeisrtitcci dideadactanssnasiccr 1]

Appendix C — Constitutional and Statutory

UTI TI aids iacictcenepintastiecnarenss. 13

Appendix D — Order of the United States

District Court for the District of North Dakota

Pe FE Cb, Fie ic aataetsncicoticincioaes: 21

Appendix E — Order of the United States

District Court for the District of North Dakota

Pa NN hg Breaks sac cpuseia bleach atcalascentsncaiencsnads: pe

Appendix F — Judgment of the United States

District Court for the District of North Dakota

IE NE Fk CO iene hit aceatttarensestensieseans 30

Appendix G — Order of the United States

District Court for the District of North Dakota

FE FN PI TIS kisiiecessiccecsantirecerearcnermssciease 32

Appendix H — Judgment of the United States

District Court for the District of North Dakota

Beate I SY PD isso ckccaccasisdecasesnasiaccidacen: 37

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

FILED JULY 22, 1999

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

Nos. 98-2144/2416

Gilbert Copper, Adele Norberg,

Cross-Appellants/Appellees,

City of Fargo,

Appellant/Cross-Appellee,

Sherri Arnold, Kevin Niemann,

Defendants.

Appeals from the United States District Court

for the District of North Dakota.

Submitted: May 13, 1999

Filed: July 22, 1999

Before McMILLIAN, BRIGHT, and FAGG, Circuit Judges.

PER CURIAM.

ln 1991. police arrested Gilbert Copper and Adele

Norberg for unlawful picketing of an individual's dwelling in

the City of Fargo, North Dakota, in violation of a 1985 city

ordinance. That ordinance provides that "[nJo person shall

engage in picketing of the dwelling of any individual in the

City of Fargo.” Litigation over the arrest and overnight

incarcerauon of Copper and Norberg began in the federal

courts in August of 1993 and has continued until disposition

of this appeal. The district court! conducted two trials. In the

first trial, Which concluded with a judgment entered on May

10, 1996, Copper and Norberg recovered a judgment of one

dollar ($1.00) each against Fargo Police Officer Kevin

Niemann but suffered a dismissal of their claims against the

City of Fargo. In the second trial, the plaintiffs recovered

compensatory damages against the City of Fargo of $2,150.00

in a judgment entered September 8, 1997. The court awarded

attorneys’ fees of more than $67,000.00 in favor of the

plaintiffs.

Much of the work of the trial court and counsel for both

parties is for naught. The trial court and the parties

participated in a new trial on liability and damages. However.

the trial court never in fact ordered a new trial. Thus, only the

judgment in the first trial will be enforced and all proceedings

after September 12, 1995, including the second jury trial. are

vacated as outside the jurisdiction of the district court.

' A United States Magistrate Judge for the District of North

Dakota presided with the consent of the parties. See 28 U.S.C. § 636(c).

scans vn call

I. BACKGROUND

On August 20, 1991, the plaintiffs, Gilbert Copper and Adele

Norberg, and others paraded and picketed in South Fargo in

the vicinity of the dwelling of a person alleged to be a

spokesperson for an organization that provides abortion

services in the City of Fargo. After receiving a report that a

physical altercation between neighborhood residents and the

picketers had occurred, Fargo Police Officers Kevin Niemann

and Sherri Arnold arrived on the scene. After warning the

picketers that they would be arrested for violating the City of

Fargo's home picketing ordinance if they did not leave the

neighborhood, the police arrested some of the picketers for

violating the ordinance. Copper and Norberg were held

overnight in jail and the City of Fargo filed charges against

them in Cass County District Court for violating the City of

Fargo's home picketing ordinance. On February 18, 1992, the

Honorable Frank L. Racek dismissed the charges, concluding

that the ordinance was constitutional on its face, but

unconstitutional as applied to Copper, Norberg and the other

picketers arrested on August 20, 1991.

On August 18, 1993, Copper and Norberg (hereinafter

“plainuffs”) brought an action against the City of Fargo and

Fargo Police Officers Arnold and Niemann. Plaintiffs sought

damages for alleged violations of their constitutional rights of

speech and assembly based on unconstitutional enforcement

of the City of Fargo's home picketing ordinance. On

December 30, 1994, the district court dismissed the plaintiffs’

federal constitutional claims against Officer Arnold and the

plaintiffs’ state law claims against all defendants. The district

court determined that a fact issue existed as to whether

©tficer Niemann was aware, at the time of the arrest, of the

scope and distance of the plaintiffs’ route. After a jury trial on

January 10-13, 1995, the jury found the plaintiffs failed in

their burden of proof against the City. The jury also found

that Officer Niemann failed to establish his qualified

immunity defense and awarded Copper and Norberg damages

in the amount of $1.00 each against Officer Niemann.

On April 11, 1995, the district court issued a notice of

intent to grant a new trial stating that the court found that its

mitigation instruction may have misled the jury and

combined with the "defendants' closing argument [was]

clearly injurious to plaintiffs’ case and so prejudicial as to

warrant retrial of both the liability and damages issues

presented at the first trial." Jt. App. at 144. The court

cencluded it would wait to enter judgment until the parties

advised the court whether they wanted to proceed with a new

trial. On May 1, 1995, the district court issued a clarification

of its notice of intent to grant a new trial indicating that the

district court would give the parties an opportunity to submit

motions as to whether a new trial limited to damages against

defendant Niemann, and both liability and damages against

the City of Fargo should be granted. In that notice, the court

also indicated that it would enter judgment on the jury's

verdict from the first trial on May 10, 1995.

On May 10, 1995, the district court entered a final judgment

pursuant to the jury verdict. On May 22, 1995, within the

- The judgment pronounced that:

1. Plaintiffs’ complaint and causes of action

against defendant Sherri Armold are dismissed with

prejudice.

2. Plaintiffs’ complaint and causes of action

against defendant City of Fargo are dismissed with

prejudice.

statutory time limit of ten days, the plaintiffs moved, pursuant

to Rules 59(a) and 59(c), for a new trial limited to the issue of

the plaintiffs' damages and further moved the court to alter

the judgment accordingly. In the conclusion to a

memorandum attached to their motion, the plaintiffs asked

the court to grant a new trial and/or amend the judgment as

follows: "1) Grant summary judgment on liability against all

defendants and conduct a new trial limited to the issue of

damages; 2) If the Court is still persuaded that a fact issue

remains, grant a new trial on liability and damages as to

Detendants Arnold and the City of Fargo, and limited to

damages against Defendant Niemann." Jt. App. at 152. On

August 14, 1995, the district court denied this motion for new

trial stating as follows: "Plaintiffs' motion for a new trial on

damage issues only (doc. #77) is denied." Jt. App. at 157.3

No further action occurred in the case until September 27,

3. The third and fourth causes of action set forth

in plaintiffs’ complaint against defendant Kevin Niemann

are dismissed with prejudice [state law claims for

malicious prosecution and false arrest/false

imprisonment].

4. Judgment is entered in favor of plaintiff

Gilbert Copper and against defendant Kevin Niemann in

the amount of $1 awarded by the jury on plaintiff's first

and second causes of action, with post-judgment interest.

5. Judgment is entered in favor of plaintiff Adele

Norberg and against defendant Kevin Niemann in the

amount of $1 awarded by the jury on plaintiff's first and

second causes of action, with post-judgment interest.

Jt. App. at 147-148.

> Doc. #77 is the plaintiffs’ motion for new trial.

1995. when the clerk's minutes reflect a status conference and

discussion of possible new trial dates.

On April 10, 1997, the district court determined that

the City of Fargo's 1985 home picketing ordinance was

unconstitutional as a content-based restriction on free speech

under this court's decision in Kirkeby v. Furness, 92 F.3d 655

(Sth Cir. 1996). The district court therefore granted summary

judgment on liability against the City and granted summary

judgment dismissing defendant Niemann from the action.

Thereafter, on August 21, 1997, a second jury trial occurred

in which the jury awarded damages in the amount of

$1,000.00 in favor of Copper and $1,150.00 in favor of

Norberg solely against the City of Fargo. From a judgment

entered on September 18, 1997 and the award of attorneys’

fees on March 31, 1998, the City brings this appeal.*

Il. DISCUSSION

The district court did not have jurisdiction to conduct

a second trial in this case because it never entered an order

granting a new trial. Rule 59 of the Federal Rules of Civil

Procedure requires a party to move for a new thal within ten

days after judgment. Rule 59 further provides:

(d) On Court's Initiative; Notice; Specifying

Grounds. No later than 10 days after entry of

4 The plaintiffs have also filed a cross-appeal seeking a new trial

against Officer Niemann, as well as Officer Arnold, and seeking punitive

damages against them. In light of our disposition of this case determining

that the first trial resulted in the final judgment, we will not address those

issues and they are now moot.

judgment the court, on its own, may order a new

trial for any reason that would justify granting

one on a party's motion. After giving the parties

notice and an opportunity to be heard, the court

may grant a timely motion for a new trial for a

reason not stated in the motion. When granting

a new trial on its own initiative or for a reason

not stated in a motion, the court shall specify

the grounds in its order.

The district court denied the plaintiffs’ motion for a

new tral on August 14, 1995, and never issued an order

granting a new trial on all issues. Notwithstanding that no

order granting a new trial on all issues exists, the plaintiffs

contend that language in the August 14, 1995 order combined

with language in the district’ court's previous orders

demonstrate that the court implicitly granted a new trial on

the court's own initiative. This argument fails because a

district court cannot implicitly grant a new trial under Rule

59. Instead, if a district court denies a party's motion for a

new trial, the district court must specify other grounds for a

new trial in an order under Rule 59 if it decides on its own

initiative to grant a new trial. See Central Microtilm Serv, v.

Basic Four Corp.. 688 F.2d 1206 (8th Cir. 1982). This court

stated as follows:

When a party has timely moved for a new trial

but the court orders such relief on a ground not

raised in the motion, the court is deemed to

have acted on its own initiative. Under Rule 59,

however. the court has authority to act outside

the ten-day jimit in this circumstance, provided

it gives the parties notice and an opportunity to

be heard and specifies the grounds on which it

grants the new trial.

Id, at 1211 (citing Wright & Miller, Fed, Prac.& Proc. §

2813). In this case. the district court never did issue an order

granting a new trial and, therefore. did not specify grounds

for a new trial as would be required by Rule 59.

That the parties and the district court continued with

proceedings subsequent to the final judgment in this case

does not constitute a waiver of the requirements of the

Federal Rules of Civil Procedure. The district court lost

jurisdiction to further litigate this case. The district court and

the parties cannot waive the requirements of Rule 59. See

Nugent v. Yellow Cab, Co,, 295 F.2d 794 (7th Cir. 1961).

The plaintiffs further argue that the district court's

order of August 14, 1995 does not constitute a final

appealable order due to noncompliance with Rule 58 of the

Federal Rules of Civil Procedure. Rule 58 requires for entry

of a final judgment, the entry of a separate document, and

notation in the docket by the district court clerk. The

plaintiffs’ argument fails because the denial of a motion for a

new trial leaving the old judgment unaffected does not fall

under Rule 58. See Marre v. United States, 38 F.3d 823, 825

(Sth Cir. 1994). The district court is not required to issue a

new judgment or enter a separate written order. Id. On May

10. 1995, the district court signed a document entitled

"Judgment" and the Clerk of the United States District Court

of the District of North Dakota entered the "Notice of Entry

of Judgment" that same day. Thus, the district court followed

the requirements of Rule 58.

Alternatively, the plaintiffs contend there exists no

final appealable order because the issues raised in the new

trial motion were still pending. See Washington _v.

Confederated Tribes, 447 U.S. 134, 149-50 (1980). A

non-final = would deprive this court of jurisdiction under

28 U.S.C. § 1291. Specifically, the plaintiffs assert that the

district wie failed to address their second request in their

memorandum for "a new trial on liability and damages as to

Defendants Arnold and the City of Fargo, and limited to

damages against Defendant Niemann." Jt. App. at 152.

However, on its face the August 14, 1995 order did not leave

any issues unresolved. As previously stated, the order denied

the plaintiffs' motion for a new trial on the issue of damages

only. The order also stated that the district court would not

‘alter the judgment entered in this case according to plaintiffs’

suggestions." Jt. App. at 156.

During oral argument, the plaintiffs also referred to

Rule 60(a) of the Federal Rules of Civil Procedure which

reads as follows:

(a) Clerical Mistakes. Clerical mistakes

in judgments, orders or other parts of the record

and errors therein arising from oversight or

omission may be corrected by the court at any

time of its own initiative or on the motion of

any party and after such notice, if any, as the

court orders. During the pendency of an appeal.

such mistakes may be so corrected before the

appeal is docketed in the appellate court, and

thereafter while the appeal is pending may be so

corrected with leave of the appellate court.

Fed. R-Civ. P. 60(a). We reject the plaintiffs’ contention that

the jurisdictional problem in this case can be remedied by

classifying it as a clerical mistake. This is not a clerical

mistake in a judgment or order. The district court simply did

not issue an order for a new trial.

Accordingly, we find no merit and no case law which

supports the plaintiffs’ suggestions that the second trial comes

within the jurisdiction of the district court. Therefore. we

entorce the judgment rendered at the conclusion of the first

trial. Moreover, because of the change in judgment. we

remand this case to the district court to modify the attorneys’

fees awarded. The plaintiffs, as the prevailing party in the

first jury trial, are entitled to attorneys’ fees. However, on

remand the district court must determine the appropriate

amount of attorneys’ tees in light of the damages awarded by

the first jury verdict. See Farrar v. Hobby, 506 U.S. 103

(1992). Each party is responsible for their own fees and costs

on appeal.

Il. CONCLUSION

We conclude that the district court lacked jurisdiction

to proceed with a second trial because the record indicates no

order granting a new trial as required by Rule 59. We.

therefore, reverse the entry of the second judgment and the

initial judgment of May 10, 1995 stands. We remand for a

determination and award of appropriate attorneys’ fees.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

APPENDIX B — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHT CIRCUIT

FILED AUGUST 24, 1999

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

Nos. 98-2144/2416

Gilbert Copper, Adele Norberg,

Cross-Appellants/Appellees,

Vv.

City of Fargo,

Appellant/Cross-Appellee,

Sherri Arnold, Kevin Niemann.

Defendants.

Order Denying Petition for Rehearing

and for Rehearing En Banc.

The petition for rehearing en banc is denied.

petition for rehearing by the panel is also denied.

August 24, 1999

The

Order entered at the Direction of the Court:

Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

APPENDIX C—CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

United States Constitution

Amendment I

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof: or

abridging the treedom of speech, or of the press; or the right

of the people peaceably to assemble, and to petition the

Government for a redress of grievances.

Amendment IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Amendment XIV

Section |. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Federal Statutes

42 U.S.C. $1983: Civil Action for Deprivation of Rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or [Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proceeding for redress. For purposes of

this section, any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be a statute of

the District of Columbia.

(R.S. $1979; Dec. 29, 1979, P.L. 96-170, $1, 93 Stat. 1284)

Federal Rules

Federal Rules of Civil Procedure

Rule 54. Judgments; Costs

(a) Definition; Form. “Judgment” as used in these rules

includes a decree and any order from which an appeal lies. A

judgment shall not contain a recital of pleadings, the report of

a master, or the record of prior proceedings.

(As amended Dec. 27, 1946, eff. Mar. 19, 1948: Apr. 17, 1961, eff.

July 19, 1961; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 22, 1993. eff. Dec. 1,

1993)

ADVISORY COMMITTEE NOTES

1937 Adoption

Note to Subdivision (a). The second sentence is derived substantially

trom [former] Equity Rule 71 (Form of Decree).

Rule 58. Entry of Judgment

Subject to the provisions of Rule 54(b): (1) upon a

general verdict of a jury, or upon a decision by the court that

a party shall recover only a sum certain or costs or that all

relief shall be denied, the clerk, unless the court otherwise

orders, shall forthwith prepare, sign, and enter the judgment

without awaiting any direction by the court: (2) upon a

decision by the court granting other relief, or upon a special

verdict or a general verdict accompanied by answers to

interrogatories, the court shall promptly approve the form of

the judgment, and the clerk shall thereupon enter it. Every

judgment shall be set forth on a separate document. A

judgment is effective only when so set forth and when

entered as provided in Rule 79(a). Entry of the judgment shall

not be delayed, nor the time for appeal extended, in order to

tax costs or award fees, except that, when a timely motion for

attorneys’ fees is made under Rule 54(d)(2), the court, before

a notice of appeal has been filed and has become effective,

may order that the motion have the same effect under Rule

4(ay(4) of the Federal Rules of Appellate Procedure as a

timely motion under Rule 59. Attorneys shall not submit

forms of judgment except upon the direction of the court, and

these directions shall not be given as a matter of course. (As

amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1.

1963; Apr. 22, 1993, eff. Dec. 1, 1993.)

ADVISORY COMMITTEE NOTES

iy a 4 24 SOR OS

Hitherto some difficulty has arisen, chiefly where the court has written an

opinion or memorandum containing some apparently directive or

dispositive words, e.g., "the plaintiffs motion [for summary judgment] ts

granted,” see United States v F. & M. Schaefer Brewing Co. 356 US.

227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have

viewed these opinions or memoranda as being in themselves a sufficient

basis for entering judgment in the civil docket as provided by Rule 79(a).

However. where the opinion or memorandum has not contained all the

elements of a judgment, or where the judge has later signed a formal

judgment. it has become a matter of doubt whether the purported entry of

judgment was effective, starting the time running for post-verdict motions

and for the purpose of appeal. See sd. and compare Blanchard v

Commonwealth Oil Co., 294 F2d 834 (Sth Cir. 1961); United States v

Higginson, 238 F2d 439 (st Cir. 1956); Danzig v Virgin Isle Hotel, Inc..

278 F2d 580 (3d Cir. 1960); Sears v Austin, 282 F2d 340 (9th Cir. 1960).

with Matteson v United States, supra. Erstling v Southern Bell Tel. & Tel

Co.. 285 F2d 93 (Sth Cir. 1958); Barta v Oglala Sioux Tribe, 259 F2d

$53 (Sth Cir. 1958), cert denied 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d

304 (1959); Beacon Fed. S. & L. Assn. v Federal Home L. Bank Bd., 266

F2d 246 (7th Cir. 1959), cert denied 361 U.S. 823, 80 S.Ct. 70, 4 L.Ed.2d

67 (1959): Ram yv Paramount Film D. Corp., 278 F2d 191 (4th Cir.

1960).

The amended rule eliminates these uncertainties by requiring that there be

a judgment set out on a separate document--distinct from any opinion or

memorandum--which provides the basis for the entry of judgment. That

judgments shall be on separate documents is also indicated in Rule 79(b):

and see General Rule 10 of the U. S. District Courts for the Eastern and

Southern Districts of New York: Ram v Paramount Film D. Corp.. supra,

at 194.

See the amendment of Rule 79(a) and the new specimen forms of

judgment, Forms 31 and 32.

See also Rule 55(b) and (2) covering the subject of judgments by default.

Federal Rules of Appellate Procedure

Rule 4. Appeal as of Right—when Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in rules

4(a)(1)(B). 4(a)(4), and 4(c), the notice of appeal required by

Rule 3 must be filed with the district clerk within 30 days

after the judgment or order appealed trom is entered.

(B) When the United States or its officer or agency is

a party. the notice of appeal may be filed by any party within

60 days after the judgment or order appealed from is entered.

(2) Filing Before Entry of Judgment. A notice of appeal

filed after the court announces a decision or order—but

before the entry of the judgment or order—is treated as filed

on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of

appeal. any other party may file a notice of appeal within I4

days after the date when the first notice was filed. or within

the time otherwise prescribed by this Rule 4(a), whichever

period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party timely files in the district court any of

the following motions under the Federal Rules of Civil

Procedure, the time to file an appeal runs for all parties from

the entry of the order disposing of the last such remaining

motion:

(i) for judgment under Rule 50(b):

(ii) to amend or make additional factual findings

under rule 52(b), whether or not granting the motion would

alter the judgment;

(iii) for attorney's fees under Rule 54 if the district

court extends the time to appeal under Rule 58:

(iv) to alter or amend the judgment under Rule 59:

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed

no later than 10 days (computed using Federal rule of civil

procedure 6(a)) after the judgment is entered.

(B)(i) If a party files a notice of appeal after the court

announces or enters a judgment—but before it disposes of

any motion listed in Rule 4(a)(4)(A)—the notice becomes

effective to appeal a judgment or order, in whole or in part.

when the order disposing of the last such remaining motion is

entered.

(ii) A party intending to challenge an order disposing

of any motion listed in Rule 4(a)(4)(A), or a judgment altered

or amended upon such a motion, must file a notice of appeal.

or an amended notice of appeal—in compliance with Rule

3(c)—-within the time prescribed by this Rule measured trom

the entry of the order disposing of the last such remaining

motion.

(iii) No additional fee is required to file an amended

notice.

‘Sie. 8 @ 8 oe Bb OE RO

(7) Entry Defined. A judgment or order is entered for

purposes of this Rule 4(a) when it is entered in compliance

with Rules 58 and 79(a) of the Federal Rules of Civil

Procedure.

OS eS ——— ——-— —— ee

ee ee ee oe oe oF

a ks 2S Bie 42S Bee

4.6 2 O¢ 4 O08 8: Ae

Subdivision (a)(6). The proposed amendment would call attention to the

requirement of Rule 58 of the F.R.C.P. (Federal Rules of Civil Procedure)

that the judgment constitute a separate document. See United states v.

Indrelunas, 411 U.S. 216 (1973). when a notice of appeal is filed, the

clerk should ascertain whether any judgment designated therein has been

entered in compliance with Rules 58 and 79(a) and if not, so advise al

parties and the district judge. While the requirement of Rule 48 [sic] is not

jurisdicitonal. (see Bankers Trust Co. v. Mallis, 431 U.S. 928

(1977))[sic], compliance is important since the time for the filing of a

notice of appeal by other parties is measured by the time at which the

judgment is properly entered.

Municipal Ordinances

City of Fargo Residential Picketing Ordinance enacted

January 28, 1985.

ARTICLE 10-08 PICKETING

10-0801. Definitions.--For purposes of this article, certain

words and phrases used herein are defined as follows:

A. "Dwelling" means any structure or building, or

dwelling unit within a building, which is used as a

place of residence.

B. “Picketing” means the practice of standing.

marching or patrolling by one or more persons inside

of. in front. or about any premises for the purpose of

persuading an occupant of such premises or to protest

some action, attitude or belief.

10-0802. Picketing of dwellings prohibited.--No person shall

engage in picketing the dwelling of any individual in the City

of Fargo

eh ee ee

APPENDIX D — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NORTH

DAKOTA FILED APRIL 11, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

Gilbert Copper and Adele Norberg,

Plaintiffs,

VS. Civil No. A3-93-130

City of Fargo and Kevin Niemann,

Detendants.

NOTICE O N sRAN NEW

Pursuant to Rule 59 of the Federal Rules of Civil

Procedure. this "court of its own initiative may order a new

trial for any reason for which it might have granted a new

trial on motion of a party." providing that it does so within

ten days after entry of judgment. Fed. R. Civ. Pro. 59 (d).

“Rule 59 of the Federal Rules of Civil Procedure allows a

trial court to order a new trial where necessary to insure that

all parties receive a just and fair determination of the issues

presented.” Brown v. Royalty, 535 F.2d 1024, 1027 (8th Cir.

1976). Furthermore, the Eighth Circuit Court of Appeals has

determined that a court may grant a new trial when its

instructions to the jury, taken as a whole, do not fairly and

adequately submit the issues to the jury or set forth the

wit,

applicable law and thus prejudicially affect the verdict. See

Laubach v. Otis Elevator Co.. 37 F.3d 427, 429 (Sth Cir.

1994): Sherrill v. Royal Industries, Inc.. 526 F.2d 507 (8th

Cir. 1975). The Eighth Circuit has also ruled that courts are

free to grant a new trial when statements made during closing

argument are plainly unwarranted and clearly injurious.

Griffin v. Hilke, 804 F.2d 1052, 1057 (8th Cir. 1986):

Vanskike v. Union Pacific R. Co., 725 F.2d 1146, 1149 (8th

Cir. 1984) (citing Homan v. United States, 279 F.2d 767 (8th

Cir. 1960)).

On January 10-13, 1995, the single remaining fact issue

in the above entitled case was tried to an eight-person jury.!

At the close of evidence. the court instructed the jury about

the sole issue in this matter and the law it should apply in

reaching a verdict. The court's instructions included the

following:

INSTRUCTION NO. 20

Mitigation of Damages

A person who claims damages resulting

from the wrongful act of another has a duty

under the law to use reasonable diligence to

mitigate--to avoid or minimize those

damages.

| The issue the jury was asked to decide was whether defendant Officer

Kevin Niemann was aware, at the time of plaintiffs’ arrest, that plaintiffs

had been walking a picketing route extending down the block beyond the

Gifford residence or whether Officer Niemann reasonably believed that

plaintiffs had been demonstrating solely in front of the Gifford residence

If you find the defendants are liable and

the plaintiffs have suffered damages. the

plaintiffs may not recover for any item of

damage which they could have avoided

through reasonable effort. If you find by a

preponderance of the evidence that the

plaintiffs reasonably failed to take advantage

of an opportunity to lessen their damages.

you should deny them recovery for those

damages which they would have avoided

had they taken advantage of the opportunity.

You are the sole judge of whether the

plaintiffs acted reasonably in avoiding or

minimizing their damages. Injured plaintiffs

may not sit idly by when presented with an

opportunity to reduce their damages.

However, they are not required to exercise

unreasonable efforts or incur unreasonable

expenses in mitigating the damages. The

defendants have the burden of proving the

damages which the plaintiffs could have

mitigated. In deciding whether to reduce the

plaintiffs’ damages because of their failure to

mitigate, you must weigh all the evidence in

light of the particular circumstances of the

case, using sound discretion in deciding

whether the defendants have satisfied their

burden of proving that the plaintiffs’ conduct

was not reasonable.

Upon review of the proceedings in this matter, the court

finds that this instruction may have misled the jury about the

scope of the plaintiffs’ obligation to avoid or minimize their

damaves. See Millers. Lovett. 879 F.2d 1066, 1070-71 (2nd

Cir. 1989) ‘

A properly phrased mitigation charge should

limit the jury's consideration to what the

plaintitf did or should have done after being

injured. It focuses on the plaintiff's duty “to

prevent the aggravation” of injuries already

received and “to effect a recovery trom such

injuries.” There can be no duty to mitigate

damages unul the injury causing those

damayes actually occurs

It a plainutt’s duty to mitigate damages were

to include the duty to avoid the underlying

injury, few arrestees could recover damages

under § 1983 since most could have

“avoided” engaging in the conduct that

precipitated the arrest.

ld. (emphasis in original) (citations omitted). The court ts

concerned that the mitigation of damages instruction above

may have created the erroneous impression that plainutts

could have mitigated their damages by leaving the scene of

the demonstration when Officer Niemann asked them to do

so. This concern is due in part to the language in the

instruction and in part to defendants’ application of this

instruction in their closing argument.

In their closing argument. defendants noted that Officer

Niemann asked plaintiffs to leave the area and then warned

them that if thes did not go home they would be arrested tor

violating the Fargo antipicketing ordinance. Defendants then

contended that plaintiffs would not have been arrested if they

‘si

had heeded these warnings. Additionally, defendants argued

that by refusing to leave the scene of the demonstration when

asked to do so, plaintiffs reasonably failed to take advantage

of an opportunity to lessen their damages; and therefore,

pursuant to the court's mitigation of damages instruction, the

jury should deny plaintiffs recovery for those damages which

they would have avoided had they complied with Niemann’'s

request to leave the area.

Che United States Supreme Court in Frisby ¥. Schultz.

487 U.S. 474, 479-81 (1988), ruled that picketers have a First

Amendment right to demonstrate on public. streets and

sidewalks in a residential neighborhood and this court

concluded that plaintiffs were lawfully exercising — this

constitutional right on August 20, 1991, when they

participated in a demonstration near the Gifford residence.

Consequently, defendant Niemann had no right to request

plainutts to leave the demonstration area or to arrest plaintiffs

When they tailed to do so. Informing the jury that it should

deny plaintifts recovery tor damages plainutts would have

avoided if they had complied with Niemann’s request to leave

the scene of the demonstration clearly implied that Niemann's

acuons Were appropriate and that plainutts had a duty to

avoid the arrest. It is very likely that this implication unfairly

intluenced the jury's decision on the question of liability as

Well as damages. Accordingly, the court finds that the

mitigauon of damages instruction in) combination with

defendants’ closing argument were clearly injurious to

plainutts’ case and so prejudicial as to warrant retrial of both

the lability and damages issues presented at the first trial.

The court will schedule the case for retrial unless the parties

elect not to proceed with that option.

IT IS ORDERED that:

Ihe court finds that there are grounds for a new trial and

will order a new trial on all issues presented at the first trial

unless the parties elect to decline the opportunity to retry the

case. The parties shall advise the court in writing by May 1,

1905 whether or not they wish to proceed with a new trial

Entry of yudgment will be deterred until that date

Dated: April 11, 1995

Karen K. Kiein

United States Magistrate Judge

APPENDIX E — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NORTH

DAKOTA FILED MAY 1, 1995

IN THE UNITED STATES DISTRICT COUR!

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

Gilbert Copper and Adele Norberg,

Plaintitts,

VS. Civil No. A3-93-130

City of Fargo and Kevin Niemann,

Detendants.

CLARIFICATION OF NOTICE OF INTENT TO

GRANT NEW TRIAL

Plainutts have responded to the court's April 11, 1995

notice of intent to grant new trial by raising a question about

the intended scope of the new trial. Specifically, plaintiffs

inquire Whether the court intends to retry the issue of liability

against the City of Fargo.

In its notice of intent, the court indicated it intended to

vrant a new trial as to all issues presented in the first trial.

The new trial would encompass both the fact issue as to

liability and damage issues involving both Kevin Niemann

and the City of Fargo.

Plaintitts indicate they do not wish to reopen the tssue of

liability against defendant Niemann and intend instead to

move for a new trial limited to damages against detendant

Niemann and both liability and damages against the City of

Fargo. The court will afford plaintiffs an opportunity to

present such a motion, but the court questions the propriety of

retrving the identical fact issue against one detendant but not

the other.

The court recognizes that because of differing burdens of

proof, the issue was presented to the jury in a separate

interrogatory as to each defendant, but the issue ts

nonetheless the same. The court has already expressed its

concern that the error regarding the mitigation of damages

instruction affected the jury's consideration not only of the

damages issues in the case, but the liability issues as well.

Under the circumstances, it cannot be said that the error

potentially intluenced the jury's consideration of the evidence

against one defendant but not the other. The court: will,

however, attord plainutfs an opportunity to preserve their

position in the record and will consider any argument they

may have regarding not retrying liability of defendant

Niemann,

lo expedite the retrial matter, the court directs, that the

parties have until May 20, 1995 to respond to the court's

notice of intent to grant new trial, as clarified herein, as well

as to file any motions for new trial on different terms than

indicated by the court in its notice. Judgment will be entered

on the jury's verdict on May 10, 1995.

the clerk is directed to serve this notice upon counsel tor

the parties by facsimile transmission.

IT ISSO ORDERED.

Dated: May 1, 1995.

Karen K. Klein

United States Magistrate Judge

APPENDIX F — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE DISTRICT OF

NORTH DAKOTA FILED MAY 10, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

Gilbert Copper and Adele Norberg,

Plaintiffs,

VS. Civil No. A3-93-130

City of Fargo and Kevin Niemann,

Defendants.

Pursuant to this court’s summary judgment ruling and

the verdict rendered by the jury in this case, it Is

ADJUDGED AND DECREED:

|. Plaintiffs’ complaint and causes of action against

defendant Sherri Arnold are dismissed with prejudice.

2. Plaintiffs’ complaint and causes of action against

defendant City of Fargo are dismissed with prejudice.

3. The third and fourth causes of action set forth in

plaintiffs’ complaint against defendant Kevin Niemann are

dismissed with prejudice.

4. Judgment is entered in favor of plaintiff Gilbert

Copper and against defendant Kevin Niemann in the amount

of $1 awarded by the jury on plaintiffs first and second

causes of action, with post-judgment interest.

5. Judgment is entered in favor of plaintiff Adele

Norberg and against defendant Kevin Niemann in the amount

of $1 awarded by the jury on plaintiffs first and second

causes of action, with post-judgment interest.

Dated: May 10, 1995

Karen K. Klein

United States Magistrate Judge

APPENDIX G — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF NORTH

DAKOTA FILED AUGUST 14, 199£

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

Gilbert Copper and Adele Norberg,

Plaintiffs,

VS. Civil No. A3-93-130

City of Fargo and Kevin Niemann,

Defendants.

ORDER

There are several pending motions filed by plaintiffs

relating to post-trial matters.

Motion for New Trial/Alter Judgment

On May 22, 1995, plaintiffs filed a motion for a new trial

on the issue of damages only and a motion to alter the

judgment entered by this court. Plaintiff argues that liability

and damages are distinct issues and that this court should

reverse its decision to grant a new trial on both the liability

and damages issues presented at the first trial. Instead,

plaintiff urges this court to grant a new trial on the issue of

damages only.

This court has previously considered plaintiffs’ request for

a new trial on the issue of damages only and determined that

the mitigation of damages instruction may have unfairly

influenced the jury's decision on the question of liability as

well as damages. The court is not persuaded that its decision

was erroneous. Accordingly, plaintiffs’ motion for a new trial

on the issue of damages only is denied.

Plaintiffs also request this court to review its summary

judgment rulings.

Specifically, plaintiffs argue that the court erred in ruling

that the defendant police officers are entitled to qualified

immunity.! In support of their argument, plaintiffs contend

| Although this court ruled that defendant Officer Sherri Arnold was

entitled to qualified immunity, it did NOT rule that defendant Officer

Niemann was entitled to qualified immunity. To the contrary, the court

found that it could not rule on the question of qualified immunity with

respect to defendant Niemann because the court found that the evidence

submitted presented a genuine factual dispute requiring a jury to assess

the credibility of witnesses and resolve inconsistencies in the evidence. At

the trial, the jury found that Officer Niemann failed to meet his burden of

proving his atfirmative defense. Accordingly, the court entered judgment

against Niemann, thereby denying his request for qualified immunity from

damages.

In its December 30, 1994 summary judgment ruling, this court

discussed plaintiffs’ claim that the officers had a duty to investigate further

before making arrests. In rejecting the claim, the court stated that

the court finds that if the jury is persuaded by

Niemann's version of the events, then a reasonable

officer could have found that there was probable

cause to arrest the protestors.

‘4

that this court found that “there was not probable cause tor

the arrest of the plaintitts.” Pls’ Mot. tor a New Trad and To

Alter Judgment, at 7) Phainttts are mistaken. The court did

not specifically decide whether there was probable cause to

arrest phantitts

lhus court has reviewed phantitts’ other arguments and

found them unpersuasive ~ Consequently, this court declines

plunttts’ invitation to conduct another review of all lability

Conversely, if tthe pury ts persuaded that Niemann

possessed information about the scope and distance of

the picketers’ demonstration route betore he made the

arrest, then, viewing the facts in the light) most

tavorable to the plaintitts, the court concludes that a

reasonable officer could not have beheved the arrest

was lLawtul

Order of December 40, 1994) at 34.35

The jury tound that Niemann fuled to prove he did not know the

extent of the prcketing route Therefore, there 1s no finding that Niemann

acted as a reasonable police officer in deciding to arrest plainttts, In hight

oft the purv's finding, any clarmed duty to investigate turther and the court's

earher discussion of the issue have lost ther relevance

: Specitically the court declines to reconsider its holding that

Officer Sherr Arnold is entitled to qualified immunity because plaintutts

present argument is based on an erroneous factual premise that Officer

Arnold learned about the extent of the proketing route in her squad car as

she was driving the female picketers to the jail

As to the City of Fargo, the court again rejects plaintitts

argument that the city's admission that the police officers acted “pursuant

to” the poles, customs, practices, provedures and traning when

Niemann arrested plaunutts, based on the nonexistence of any poliey of

procedure relating to residential picketers

issues and to alter the judgment entered in this ease according

to plaintitts’ suggestions.

Motion to File Reply Brief

the court has considered plaintiffs’ reply brief and hereby

grants leave to file the brief.

Motion for Extension of Time

to Submit Application for Attorneys’ Fees

Pluntitts seek an extension of time to apply for an award

of attorneys’ fees until 20 days after entry of final judgment

on their motion for new trial. Judgment has already been

entered on the yury's verdict. The court has ordered a new trial

on terms differemt than those requested by plaintiffs.

PlaintttS are granted an extension until 20 days after entry of

amy judgment following retrial to file an application for

attorneys tees

Motion to Strike Juror Affidavit

Planttts move to strike an affidavit of a juror tiled by

detendants. The aflfidavit is improper under Federal Rule of

Evidence O8O¢b) Pllainutts’ motion ts granted.

It IS ORDERED

| Planutts motion for a new trial on damages tssues

only (doe. #77) is denied.

: Planutts motion for leave to file a reply brief (doc.

#83) 0s wranted.

Plainutts’ motion to extend ume for application of

attorney fees (doc. #78) is granted.

Plaintitts’ motion to strike juror attidavit (doe. # 79) ts

vranted.

Dated: August 14, 1995

Karen K. Klein

United States Magistrate Judge

APPENDIX: H — AMENDED JUDGMENT OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NORTH DAKOTA ENTERED MARCH

31, 1998

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

Gilbert Copper and Adele Norberg,

Plaintifts,

VS. Civil No. A3-93-130

City of Fargo and Kevin Niemann,

Detendants.

JUDGMENT IN A CIVIL CASE

Jury Verdict. Following an order for summary judgment in

favor of plaintiffs on the issue of liability, this action came

betore the Court for a trial by jury on the issue of damages.

The jury has rendered tts verdict.

Iv IS ORDERED AND ADJUDGED pursuant to the jury

verdict entered on August 21, 1997, the plaintiffs are entitled

to damages as tollows:

Gilbert Copper $1,000.00

Adele Norberg $1,150.00

LOTAL JUDGMENT $2,150.00

March 31, 1998) Order Filed and Entered by Mayistrate

ludge Klein awarding attys’ tees: $67,305 & costs: $2,097.94

LOTAL JUDGMENT: $7 1.552.94

Dated: September 8, 1997

tdward J. Alecker

( lerk

by Deputy Clerk Shelley, \Eo Caauque

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.