Opinion
Case No. 01-2190-JWL
December 12, 2002.
MEMORANDUM ORDER
Plaintiff filed suit against defendant, his former employer, alleging that defendant, on the basis of plaintiff's age and in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., failed to promote or otherwise transfer plaintiff to an open position within the company after defendant acquired plaintiff's previous employer. On August 7, 2002, the court granted summary judgment in favor of defendant and dismissed plaintiff's complaint in its entirety. See Kaster v. Safeco Ins. Co. of Am., 212 F. Supp.2d 1264 (D.Kan. 2002). This matter is presently before the court on plaintiff's motion to strike as premature defendant's bill of costs (doc. #73). As set forth in more detail below, the court grants plaintiff's motion to strike.
To understand the nature of plaintiff's motion to strike and the court's disposition of that motion, an examination of the recent procedural history of this case is necessary. As noted above, the court granted summary judgment in favor of defendant in an order dated August 7, 2002. Thereafter, plaintiff filed a motion to alter or amend the judgment pursuant to Rule 59(e). Defendant moved to strike as untimely plaintiff's motion to alter or amend. Specifically, defendant argued that judgment was entered on August 7, 2002 and thus, pursuant to Federal Rule of Civil Procedure 59(e), plaintiff's motion to alter or amend must have been filed no later than 10 days after August 7, 2002, or no later than August 21, 2002. Plaintiff, however, did not file his motion to alter or amend until August 22, 2002.
While the court concluded that plaintiff's motion to alter or amend was filed out of time (a conclusion that, as explained below, was incorrect), the court drew that conclusion and granted defendant's motion to strike plaintiff's motion to alter or amend in large part because plaintiff never filed a response to defendant's motion to strike and never filed a reply to defendant's opposition to plaintiff's motion to alter or amend-an opposition that also challenged the timeliness of plaintiff's motion. See Kaster v. Safeco Ins. Co. of Am., Case No. 01-2190-JWL, 2002 WL 31398759 (D.Kan. Oct. 8, 2002). As plaintiff remained silent in the face of two separate filings by defendant in which the timeliness of plaintiff's motion to alter or amend was addressed, the court construed plaintiff's silence as a concession that his motion was untimely filed. To this date, plaintiff has failed to explain to the court why he utterly failed to respond to defendant's contention that his motion to alter or amend was untimely filed.
In the meantime, defendant filed its bill of costs. On October 11, 2002, plaintiff filed a motion to strike defendant's bill of costs on the grounds that plaintiff's time to file an appeal had not expired and, in fact, plaintiff filed a notice of appeal on October 17, 2002. See D. Kan. R. 54.1 (bill of costs shall be filed within 30 days after the expiration of time allowed for appeal or after receipt by the clerk of an order terminating the action on appeal). In his motion to strike defendant's bill of costs, plaintiff asserts for the first time that his motion to alter or amend was timely filed (and, thus, that his appeal time would run from the date of the court's order disposing of the motion to alter or amend) because judgment was entered on August 8, 2002 as opposed to August 7, 2002. Defendant continues to urge that the motion to alter or amend was untimely filed and, thus, plaintiff's appeal time began running on the date that judgment was entered and expired long before plaintiff's notice of appeal was filed on October 17, 2002. See Fed.R.App.P. 4(a)(1)(A) (a)(4)(A) (notice of appeal must be filed with the district clerk within 30 days after the judgment appealed from is entered unless a party timely files in the district court a motion to alter or amend pursuant to Rule 59(e) in which case the notice of appeal must be filed within 30 days from the entry of the order disposing of the motion) (emphasis added).
After reexamining the docket sheet in this case, it is apparent to the court that judgment was in fact entered on August 8, 2002. Although the judgment was file-stamped on August 7, 2002, the clerk did not enter the judgment onto the clerk's docket until August 8, 2002. Judgment is "entered" only when it is set forth in a separate document and the substance of that separate document is recorded in the official court docket. See Herrera v. First Northern Sav. Loan Assoc., 805 F.2d 896, 899 (10th Cir. 1986) (for purposes of determining whether appeal was timely filed, relevant date was not the date the summary judgment order was file-stamped, but the date the order was actually entered on the docket); see also Jenkins v. Burtzloff, 69 F.3d 460, 461-62 (10th Cir. 1995) ("entry of judgment" means entry on the docket); Fed.R.Civ.P. 58 and 79(a); 12 Moore's Federal Practice § 58.03[1] (Matthew Bender 3d ed.) (entry of judgment is accomplished only when the clerk makes the proper notation in the docket); 12 Charles Alan Wright, Arthur R. Miller Richard L. Marcus, Federal Practice and Procedure § 3101 (2d ed. 1997) (judgment is not effective until it has been entered on the civil docket); 11 Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2785 (2d ed. 1995) (same).
In its response to plaintiff's motion to strike, defendant urges that the file-stamp date is the relevant date for determining when judgment was entered. In support of its argument, defendant relies on the local rules of this court and this court's opinion in Donner v. Lawrence Paper Co., Case No. 01-2309-JWL, 2002 WL 989459 (D.Kan. Apr. 30, 2002). Specifically, defendant points to Local Rule 6.2, which provides as follows:
Unless specifically provided otherwise, in determining filing deadlines under both the federal procedural rules and the local rules of this court, the relevant date for calculating a limitation period dependent on the filing of a court order shall be the file stamp date appearing on the order. Neither the date on which the judge signs the order nor the date on which the clerk's office enters the order on the docket has any relevance for purposes of calculating the limitation period.
D. Kan. R. 6.2. In Donner, this court, referencing Local Rule 6.2, suggested that the file-stamp date appearing on a judgment was the relevant date for purposes of calculating the limitation period for filing a Rule 59(e) motion. See Donner, 2002 WL 989459 at *1 n. 1. That precise issue, however, was not before the court as the plaintiff in Donner had conceded that his motion was not filed within 10 days of the entry of judgment. See id. at *1. Thus, the court's discussion of Local Rule 6.2 was merely dicta.
In any event, it is clear (and the court now expressly holds) that Local Rule 6.2 does not apply to judgments. Rather, Local Rule 6.2 is expressly limited to those filing deadlines triggered by the "filing of a court order." The ten-day deadline set forth in Federal Rule of Civil Procedure 59(e) is not triggered by the filing of a court order; it is triggered by entry of judgment. See Fed.R.Civ.P. 59(e) (any motion to alter or amend a judgment shall be filed "no later than 10 days after entry of judgment"); Parker v. Board of Pub. Utils., 77 F.3d 1289, 1290-91 (10th Cir. 1996) (Rule 59(e)'s ten-day deadline triggered by entry of judgment). As explained above, "entry of judgment" does not occur until the clerk records the judgment on the official docket.
In sum, then, plaintiff's motion to alter or amend was timely filed and, thus, at the time defendant filed its bill of costs, plaintiff's appeal time had not yet expired. The court, then, will grant plaintiff's motion and strike defendant's bill of costs. See Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998) (even after a timely notice of appeal is filed, the district court retains jurisdiction over matters wholly collateral to the merits). The court, however, is disappointed and frustrated by plaintiff's failure to address the timeliness of his motion to alter or amend until now-when it is too late for the court to address the merits of the motion to alter or amend and to remedy any mistake it may have made in connection with the summary judgment order. See id. (filing a notice of appeal generally divests the district court of jurisdiction over the issues on appeal). While the court does not mean to suggest that it made a mistake in its resolution of defendant's motion for summary judgment, if plaintiff had responded to defendant's challenge that plaintiff's motion to alter or amend was untimely, then the court would have concluded at that point that the motion to alter or amend was timely filed and the court could have taken another look at its summary judgment order. By failing to respond to this challenge until after filing his notice of appeal and only in connection with defendant's bill of costs, plaintiff has deprived himself of the opportunity to have this court reexamine the summary judgment order and has left himself with only one chance (instead of two) at ultimate success-an appeal to the Tenth Circuit.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion to strike defendant's bill of costs (doc. #73) is granted and defendant's bill of costs (doc. #70) shall be stricken.