Reply Brief — Copper v. City of Fargo

3) Supreme Court. U.S.

FILED

No. 99-882 "Tyan 09 or)

In The CLERK

Supreme Court of the Unité@&States————

®

GILBERT COPPER and ADELE NORBERG,

Petitioners,

vs.

CITY OF FARGO, et al.,

Respondents.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

e

PETITIONERS’ REPLY BRIEF

©

THOMAS W. CONDIT PETER B. CRARY

Counsel of Record Local Counsel

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

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TABLE OF CONTENTS

Pa

ATENEO SPAT DT AA COTTE TD

Reply to Respondent's Statement of the Case ............

Reply to Respondent’s Reasons for

PN I III chaiccshicncnssnhanilishemnasnebadsiininssancoesasesoraninnsen

Petitioners did not waive the Rule 58

separate document requirement by

filing an abortive appeal from the

Pe Be I sii ctattecintesescicinsnesintenesnssonnses

The Rule 58 issue presented in the petition

Ie EE inet hisathenstictiecsnshcicsaantakcsstesaseeuobionsen

A.

Resolution of the separate document

question in favor of Petitioners would

permit the lower courts to address the

merits of Petitioners’ constitutional

claims, and/or to order a new trial..........

The Eighth Circuit's focus on the absence

of a formal Rule 59 order distracted it

from attending to the formal Rule 58

separate document requirement...............

The companion case is still being litigated

ili

n

Ill. This case is a proper vehicle for establishing a

uniform rule for application of the separate

document requirement of Rule 58 to post-judgment

orders which commence the time

for appeal ..............ccccscscssssrsccesesesssessesssnssssessensseees 8

A. Conflict with this Court’s precedent and

plain language of Appellate Rule 4(a) ..... 8

B. Aconsiderable number of circuits

pe fat CRIES, cccicsinieanttianaieditacatiindeidaniiancaen 9

C. Other circuits are in confusion.................. 10

IV. Cpt... ccecinsssttisisanitiiamaiiia amas 10

APPENDIX

Appendix A — Partial Docket Sheet of

Civil No. A3-93-130 (D.N.D.).....cccccsecsssscssssssseeeseeecnees 1

11

TABLE OF CITATIONS

Cases

Adickes v. S. H. Kress & Co.

Be hs ie IE cihensnsiensciacsninsnsssincsesenrendiantinopnenvesne 3

Allen v. Horinek

827 F.2d 672 (10th Cir. 1987) ...........ccccccscosessssscnssenseees 9

Fiore v. Washington County Corn. Mental Health Ctr.

960 F. 2d 229 (Ist Cir. 1992) (et DANC)........ececeereerene 9

Hard v. Burlington Northern Railroad Co.

870 F.2d 1454 (9th Cir. 1989) ..........ccccscssscsssesesesesesees 10

Hollywood v. City of Santa Maria

886 F.2d 1228 (9th Cir. 1989) .......ceceseseereeseeeeeeees 10

Kersey v. Dennison Manufacturing Co.

3 F.3d 482 (Ist Cir. 1993)........cssssssssssesssesesessseseeees 5

Kirkeby v. Furness

92 F.2d 655 (8th Cir. 1996) .......sscsssesssssscsesssessesssenees 8

New Haven Inclusion Cases

399 U.S. 392, 450 (1970).....ceeeresecsesesersseseeesesenesersees 3

Nugent v. Yellow Cab Co.

95 F.2d 794 (7th Cir. 1961) .......ccccscsssesesereneeeeesseseseeens 6-7

Russell v. Southard

12 How. 139 (1851) ..........ccccsesscecscerscecssssseseseeecerscsrsess 3

U.S. v. Haynes

158 F.3d 1327 (D.C.Cir. 1998).......ccscscsssseessesrsrsesenees 9

1v

United States v. Indrelunas

411 U.S. 216 (1973)... ccscesececesessseeserenerenesenenensneeneeesees 4

Veneklase v. City of Fargo,

200 F.3d 1111 (8th Cir. 1999), vacated upon

grant of rehearing en banc (February 16, 2000)

2000 U.S. App. LEXIS 2255 ......cessssesessssssssseseenseneneenens 7-8

Willhauck v. Halpin

919 F.2d 788 (Ast Cir. 1990)... ceceseeesessetsneneeseenenenens 5-6

Witters v. Washington Dept. of Servs. for Blind

474 U.S. 481 (1986)... csccceseseeeeteneseenenesesssneneeteeeneees 3

Woods v. Wal-Mart

124 F.3d 219 (10th Cir. 1997) (table)... 9

Rules

Rule 4, Federal Rules of Appellate Procedure............... 8-10

Rule 50, Federal Rules of Civil Procedure............... 9

Rule 52, Federal Rules of Civil Procedure............... 9

Rule 58, Federal Rules of Civil Procedure............... 1-10

Rule 59, Federal Rules of Civil Procedure............ 6, 8-9

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

Rule 10, Supreme Court Rules .........:sccsesssssseeseeneneeeees 8, 10

|

PETITIONERS’ REPLY BRIEF

On or about February 16, 2000, Respondents City of

Fargo ("City"), Kevin Niemann, and Sherri Arnold filed a

Brief in Opposition (“Opp. Brief”) to the Petition for a Writ

of Certiorari. Pursuant to Supreme Court Rule 15.6,

Petitioners Gilbert Copper and Adele Norberg address the

new points raised by Respondents.

REPLY TO RESPONDENTS’

STATEMENT OF THE CASE

Petitioners believe that Respondents mischaracterized

some of the picketing events which underlie this dispute.

However, because the specific events are not relevant to the

Rule 58 issues presented in the Petition, Petitioners will

refrain from further comment on those points.

On the other hand, it is important for Petitioners to

correct one serious misstatement in Respondents’ brief

regarding the procedural history of this case. Respondents

stated that the Petitioners filed a Notice of Appeal in

response to the District Court's Order on August 14, 1995,

and that they “subsequently withdrew the previously timely

filed Notice of Appeal.” Opp. Brief at 4-5. Such a statement is

absolutely false. The first Notice of Appeal filed in this action

was filed by the City on April 22, 1998 (District Court Dkt.

No. 143) in response to the final Judgment and attorney fee

award by the District Court on March 31, 1998. Petition,

App. H.

2

REPLY TO RESPONDENTS’ REASONS

FOR DENYING THE WRIT

Respondents concede two significant points:

1. The District Court order of August 14, 1995

(Petition, App. G), which is the focus of the Rule 58

issue presented for review to this court, “contained

both legal reasoning as well as” an order. Opp. Brief

at 4 n.3. Thus, Respondents concede that the order at

issue was not set forth on a separate document.

2. Uniform application of Rule 58 to post-

judgment orders would be desirable. “Respondents

agree that uniform application of Rule 58 may be

appropriate as the rule exists to create greater

certainty in establishing the time for which an appeal

from a final judgment should lie.” Id. at 8.

Respondents, however, make three arguments that this

case is an inappropriate vehicle for this Court to establish a

uniform rule for applying the separate document

requirement of Rule 58 to post-judgment orders. All three

arguments are flawed, as explained point by point below.

I. Petitioners did not waive the Rule 58 separate

document requirement by filing an abortive appeal

from the August 14, 1995 order.

Appendix 1 of Respondent's Opposition Brief consists of

a Notice of Appeal captioned in the United States District

Court for the District of North Dakota and dated September

13, 1995. However, the District Court docket sheet for this

case does not record the filing of the Notice of Appeal. See

Appendix A to this Reply Brief. Therefore, this Court must

disregard it.

3

“This Court must affirm or reverse upon the case as it

appears in the record[.]” Witters v. Washington Dept. of Servs.

for Blind, 474 U. S. 481, 489 n. 3 (1986). “We can not look out

of [the record] for testimony to influence the Judgment of

this court sitting as an appellate tribunal.” Russell v. Southard,

12 How. 139, 159 (1851). See also New Haven Inclusion Cases,

399 U.S. 392, 450, n. 66 (1970) (Court refuses to consider

newspaper articles not in the record.); Adickes v. S. H. Kress &

Co., 398 U. S. 144, 157-158, n. 16 (1970) (court refuses to

consider statement of witness not found in trial court

record).

However, in the event that this Court would for any

reason consider the Notice Of Appeal which appears in

Respondents’ Appendix, Petitioners submit the following

commentary for consideration. It is true that the Petitioners

came very close to filing a Notice of Appeal in September,

1995, going so far as to serve it on the City's Attorney before

they changed course and decided not to file it at all. The

Petitioners spent no small amount of time wavering on

whether an Appeal should be filed, whether it would be

considered premature, and whether some important issues

would be waived by filing an appeal (or by not filing an

appeal) at that time. With the District Court having stated in

its order that it had already granted a new trial on terms

different from the relief sought by Petitioners (i.e., granting

Petitioners’ request for a new trial against the City but

denying a “damages only” trial against Niemann),

Petitioners were faced with the kind of uncertainty which

the Rule 58 separate document requirement is designed to

eliminate, all of which only reinforces the need for

clarification by this Court of mandatory post-trial procedure

in the district courts.

4

However, even had Petitioners filed and withdrawn the

Notice of Appeal, Respondents’ “waiver” argument would

still lack merit. In United States v. Indrelunas, 411 U.S. 216

(1973), the seminal case on the application of the separate

document requirement of Rule 58 to questions of

appealability, this Court addressed the identical objection

raised by Respondents and rejected it. Petitioner in that case

had taken an abortive appeal from a filed stipulation for

damages prior to the entry of a formal judgment. This Court

stated:

The Court of Appeals appears to have been

motivated in its conclusion, at least in part, by what it

felt to have been the capricious conduct of the

Government in first seeking to appeal following the

filing of the stipulation for damages, and then later

insisting that at that time there had been no judgment

which it could have appealed from.

Id. at 221. This Court rejected such an argument for waiver

precisely because, if accepted, it would vitiate the

effectiveness of a mechanical application of the separate

document requirement for purposes of establishing

appellate jurisdiction.

But whatever may be the appropriate sanctions

available in a particular case for capricious conduct

on the part of a litigant, we do not believe that a case-

by-case tailoring of the “separate document”

provision of Rule 58 is one of them.

Id. Respondents’ waiver-by-abortive-appeal argument, being

identical to that rejected in Indrelunas, requires no further

comment.

5

II. The Rule 58 issue presented in the petition is not

academic.

A. Resolution of the separate document

question in favor of Petitioners would

permit the lower courts to address the merits

of Petitioners’ constitutional claims, and/or

to order a new trial.

If this Court grants the writ and determines that the Rule

58 separate document requirement applies to orders denying

post-trial tolling motions, then the Eighth Circuit erred when

it concluded that the District Court lost jurisdiction in 1995.

Instead, the District Court retained its jurisdiction

throughout the second trial and until it entered final

judgment on a separate document on March 31, 1998.

Petition, App. H. Consequently, upon remand the Eighth

Circuit will have to consider the effect of the 1997 (second)

trial on its merits, order a new (third) trial, or remand the

case to the District Court for other appropriate proceedings.

When an appellate court remands a case for lack of

compliance with Rule 58, a party can still “attempt to

persuade the district court to reconsider” the underlying

ruling. Kersey v. Dennison Manufacturing Co., 3 F.3d 482, 485

(1st Cir. 1993). If Rule 58 is not satisfied, claims in the case

“remain open until finally disposed of by the district court in

a separate document.” Willhauck v. Halpin, 919 F.2d 788, 793

(1st Cir. 1990). Thus, the Eighth Circuit order to vacate the

second judgment and reinstate the first one would itself have

to be vacated for consideration of further action on the

merits. As the First Circuit stated:

On remand, the lower court must consider whether it

desires to change any of the previously entered

interlocutory orders. After making its desired

6

changes, if any, it is directed to enter final judgments

disposing of the entire litigation in accordance with

the Federal Rules of Civil Procedure.

Willhauck at 794.

B. The Eighth Circuit's focus on the absence of

a formal Rule 59 order distracted it from

attending to the formal Rule 58 separate

document requirement.

Petitioners submit that the Eighth Circuit panel lost its

focus on the critical issue when it diverted its attention to the

absence of a new trial order, concluding:

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).

Petition, App. A at p. 8.

Hitching their wagon to the Eighth Circuit's reasoning,

and also citing Nugent, Respondents argued that Petitioners

“have not presented” to this Court the issue of the District

Court's “fail[ure] to enter an order granting a new trial.”

Opp. Brief at 24 n.14.

Petitioners did not present the Rule 59 issue to this Court

for a good reason: it is not the dispositive issue. The whole

point of their Petition is that regardless of any defect or

omission in the District Court's entries relating to the new

trial motion, entries which could have been cured or clarified

at any time at the request of a party, the District Court could

not have lost jurisdiction in 1995 because it never properly

entered a final appealable order in response to the new trial

7

motion. Indeed, the Eighth Circuit's citation to Nugent is

curiously off point. The Nugent plaintiff failed to file her

post-trial motions within the time allowed by the Civil

Rules. Therefore, the time for appeal expired in Nugent and

jurisdiction was lost, a reality which could not be waived by

the parties. Petitioners agree with that result. In this case, by

contrast, Petitioners filed a timely post-judgment motion

which continued jurisdiction in the District Court, and which

was never properly resolved, for appeal purposes, under

Rule 58.

Petitioners are not claiming that jurisdiction can be

waived when it was lost. Rather, they are asserting that

under Civil Rule 58 the District Court never lost jurisdiction

in the first place. If any waiver happened in this case, it was

the City’s waiver of any objection to a defective new trial

order. Without ever suggesting that jurisdiction had been

lost and without arguing that a second trial had not been

ordered, Respondents took part in a second trial in August

1997. The District Court subsequently entered judgment on

the jury verdict and awarded attorney fees on a separate

document — a final appealable order. Petition, App. H. Only

when the City filed its Notice of Appeal on April 22, 1998,

did the District Court finally lose jurisdiction of the case.

Cc. The companion case is still being litigated.

Finally, this Court must not be misled (Opp. Brief at 1

n.1) into thinking that the Eighth Circuit’s decision in

Veneklase v. City of Fargo, 200 F.3d 1111 (8th Cir. 1999), moots

the constitutional issues in this case. Not only are the two

cases factually and legally distinguishable because of

differences in the picketing routes, but on February 16, 2000,

the Eighth Circuit granted rehearing en banc to review

further the facial constitutionality issues decided in

Veneklase.' 2000 U.S. App. LEXIS 2255. The merits of this case

are still very much in play.

Ill. This case is a proper vehicle for establishing a

uniform rule for application of the separate

document requirement of Rule 58 to post-judgment

orders which commence the time for appeal.

A. Conflict with this Court’s precedent and

plain language of Appellate Rule 4(a).

Petitioners presented two reasons for granting the writ,

the first of which Respondents do not address at all, and

indeed concede, namely that the petition raises “an

important question of federal law that has not been, but

should be, settled by this Court.” Supreme Court Rule 10(c).

Respondents argue, however, that the Fifth, Seventh, Eighth,

and Ninth circuits do not require a separate document when

entering an order denying a motion for new trial under Civil

Rule 59(b), and that no other circuits have made an express

holding requiring a Rule 58 separate document when

denying a Rule 59(b) motion. Thus, Respondents contend

there is no circuit split, and no need for review by this Court.

They overlook, however, the obvious point that by their own

count at least four circuits have waived this Court's

requirement for “mechanical” application of the separate

document requirement to fix the time when appeals

commence to run. Such decisions are also in plain conflict

with Appellate Rule 4(a), which clearly requires application

of Rule 58 to post-judgment orders which restart the appeal

clock. See Petition for Writ of Certiorari at 13-15.

' Counsel for Petitioners in this case are also counsel for the

plaintiffs in Veneklase, where they moved for en banc review because of

the direct conflict between the Veneklase panel decision and Kirkeby v.

Furness, 92 F.3d 655 (8th Cir. 1996).

Thus, the refusal of four of the circuits to observe the

mechanical requirements for starting the appeal clock is

ample reason of itself for this Court to address and resolve

the issue, regardless of the of a split in the circuits.

B. A considerable number of circuits are in

conflict.

Respondents want this Court to take a myopic view of

the issue in order to conclude that there is no conflict in the

circuits. The First Circuit, however, regardless of whether

the global issue was strictly before it, made a blanket ruling,

with the aid of appointed amici, that Rule 58 applies “to all

final orders denying and, a fortiori, granting post-judgment

motions under Rule 50(b), 52(b), 59(b) and (e), and 60(b).”

Fiore v. Washington County Comm. Mental Health Ctr., 960 F.

2d 229, 234 (Ist Cir. 1992) (en banc). This ruling was not

dictum, but imposed a uniform rule of procedure which all

district courts in the First Circuit are required to observe.

The D.C. Circuit, also with the aid of appointed amici,

expressly allied itself with the First Circuit in regard to Rule

60(b) motions (except for Fiore’s 3-month limit), and

indicated that all orders on Rule 4(a)(4) tolling motions

should observe Rule 58, citing Appellate Rule 4(a)(7). U.S. v.

Haynes, 158 F.3d 1327, 1330-1331 (D.C.Cir. 1998). In Woods v.

Wal-Mart, 124 F.3d 219, 1997 WL 527668 (10th Cir. 1997)

(unpublished opinion), the Tenth Circuit stated that it had

previously applied Rule 58 “to the denial of a new trial

motion,” citing Allen v. Horinek, 827 F.2d 672, 673 (10th Cir.

1987), and, citing Fiore, ruled generally that “[b]ecause 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. By any fair

10

reading, the First, Tenth, and D.C. Circuits are in conflict

with the Fifth, Seventh, Eighth, and Eleventh Circuits on

application of Rule 58 to denial of post-trial tolling motions.

Cc. Other circuits are in confusion.

The Ninth Circuit has one panel precedent requiring

application of Rule 58 to orders denying a motion for a new

trial, Hard v. Burlington Northern Railroad Co., 870 F.2d 1454

(9th Cir. 1989), and a later panel opinion denying such a

requirement. Hollywood v. City of Santa Maria, 886 F.2d 1228

(9th Cir. 1989). The Second and Sixth Circuits also have

contradictory precedent. See Petition at 23-28.

IV. Conclusion.

For the above-stated reasons, this case provides an

appropriate opportunity to establish a “bright line” rule for

application of Rule 58’s separate document requirement to

all post-trial orders intended to commence the appeal

periods defined in Appellate Rule 4(a)(1). Certiorari should

be granted in the interest of resolving this important federal

question governing the timeliness of appeals, Supreme

Court Rule 10(c), and to resolve the conflict and confusion in

the circuits. Supreme Court Rule 10(a).

Respectfully submitted,

THOMAS W. CONDIT PETER B. CRARY

Counsel of Record Local Counsel

Suite C-208 1201 12th Avenue N.

9403 Kenwood Road Fargo, ND 58102

Cincinnati, Ohio 45242 (701) 280-9048

(513) 985-9333

Attorneys for Petitioners

APPENDIX

ee ae

1

APPENDIX A — PARTIAL DOCKET SHEET OF CIVIL

NO. A3-93-130 (D.N.D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

Civil No. A3-93-130

Gilbert Copper and Adele Norberg,

Plaintiffs,

V.

City of Fargo et al.,

Defendants.

8/14/95 84

ORDER by Hon. Karen K. Klein with NOTICE OF ENTRY:

granting motion for leave to file reply br [83-1], granting

motion to strike juror afdt [79-1], granting motion to ext time

for appl atty fee [78-1], denying motion for new trial on

damages issues only [77-1] (cc: all counsel) (Ij)

8/14/95 85

REPLY BRIEF by plaintiff to defts response to Motion for

New Trial and to Alter Judgment. (]j)

9/27/95 86

CLERK’S MINUTES: of status confr re: trial date before Hon.

Karen K. Klein; discussion re: possible trial dates - pties & crt

settled on 1/29/96 if case presently set then settles - crt will

notify counsel soon. A pretrial confr will be held by tel

approx 10 days prior to trial date - pltf may likely file mtn to

bifurcate. Recess. (Ij)

10/2/95 87

ORDER by Hon. Karen K. Klein: Final Pretrial conference set

for 1/16/96 by tel. conf. initiated by crt at 10:30 (cc: all

counsel) (jo) [Entry date 10/03/95]

10/2/95 88

NOTICE of Setting: Jury trial scheduled for 1/29/96 at 9:30

in Fgo bef. Mag. Klein; est. 4-5 days; (cc: all counsel, court

officials) (jo) [Entry date 10/03/95]

12/27/95 89

MOTION by plaintiff, defendant to continue trial date (Ij)