Opinion
Case No. 98 C 5495
September 9, 2002
ORDER
On May 16, 2001, after a jury trial, judgment was entered against defendants. On May 31, 2001, defendants filed a motion for judgment as a matter of law or, in the alternative, a motion for a new trial. On February 13, 2002, this court denied defendants' post-trial motion. On the same day, this court issued a minute order asking counsel for each side whether the court should decide issues regarding attorney's fees. The court's orders were mailed out on February 15, 2002. On March 14, 2002, this court issued an order awarding fees and costs to plaintiff.
Now before the court is defendants' motion to reopen the time to appeal this court's February 13 opinion denying their motion for judgment as a matter of law. Defendants' counsel aver that they never received this court's mailing of the February 13 order denying their post-trial motion and that they first became aware of the order on April 3, 2002. On April 4, 2002, they filed their motion to reopen the time to appeal. The motion became fully briefed on April 19, 2002. However, on May 2, 2002, defendants filed a notice of appeal in the Seventh Circuit regarding the attorney's fee issue. That appeal is still pending.
The court first must consider whether it has jurisdiction to decide the motion at this time. Generally, only one court has jurisdiction at a time. Apostol v. Gallion, 870 F.2d 1335, 1337 (7th Cir. 1989). However, "costs are appealable separately from the merits; a district court may award costs even while the substantive appeal is pending." Lorenz v. Valley Forge Ins. Co., 23 F.3d 1259, 1260 (7th Cir. 1994). The question in this case is whether, while an appeal of the award of attorney's fees and costs is pending, the district court may grant or deny a motion on the substance of the case. The court answers this question in the affirmative. The Seventh Circuit observes that "[t]he distribution of authority to decide depends on practical rather than formal considerations, and it is easy to imagine two courts having jurisdiction to proceed at once." Apostol, 870 F.2d at 1337. In this case, a change in the substantive ruling would necessarily result in a change in this court's ruling regarding attorney's fees. It would create a waste of judicial effort for the parties to litigate the attorney's fee issue before the appeals court, only to later discover that, after waiting for the court of appeals to render its decision, the district court granted the defendants' motion to reopen the time to appeal a substantive issue in the case. Therefore, the court concludes that it must have jurisdiction to decide this issue now. Pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure, [t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied: (A) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice of the entry, whichever is earlier; (B) the court finds that the moving party was entitled to notice of the entry of the judgment or order sought to be appealed but did not receive the notice from the district court or any party within 21 days after entry; and (C) the court finds that no party would be prejudiced.
Rule 4(a)(6) was added to the Federal Rules of Appellate Procedure in 1991. According to the Notes of the Advisory Committee on Appellate Rules, the purpose of the 1991 amendment was to provide "a limited opportunity for relief in circumstances where the notice of entry of a judgment or order, required to be mailed by the clerk pursuant to [Fed.R.Civ.P. 77(d)], is either not received by a party or is received so late as to impair the opportunity to file a timely notice of appeal." An order denying a post-trial motion pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure, such as the February 13 order in this case, constitutes a "judgment or order" subject to Rule 4(a)(6). See, e.g., Nunley v. City of Los Angeles, 52 F.3d 792 (9th Cir. 1995).
Rule 4(a)(6) "does not grant a district judge carte blanche to allow untimely appeals to be filed. [She] must make findings that the conditions prescribed by the rule have been satisfied." In re Marchiando, 13 F.3d 1111, 1114 (7th Cir. 1994). In this case, the last two requirements of Rule 4(a)(6) are met. First, the court finds that defendants were entitled to notice of the entry of the February 13, 2002 order denying their motion for judgment as a matter of law. Second, plaintiff appears to concede that defendants did not receive this court's mailed notice of the order. Furthermore, the court finds credible defendants' counsel's averment that she never received the order. Finally, no party would be prejudiced by granting the motion. See Fed.R.App.P. 4(a)(6)(C) advisory committee note ("By `prejudice' the Committee means some adverse consequence other than the cost of having to oppose the appeal and encounter the risk of reversal, consequences that are present in every appeal. Prejudice might arise, for example, if the appellee had taken some action in reliance on the expiration of the normal time period for filing a notice of appeal."). However, the first requirement in Rule 4(a)(6) is not so easily met. Specifically, the parties dispute the date on which defendants "receive[d] notice" of the February 13 order, at which time the seven-day period in paragraph (A) would be triggered. Defendants argue that it was April 3, 2002. Plaintiff argues that it was March 20, 2002 at the latest.
Although the parties fail to address the issue, what constitutes "notice" for purposes of Rule 4(a)(6)(A) has not been resolved in the Seventh Circuit, although this court has found no authority suggesting that constructive notice is sufficient. The courts of appeals are split as to whether actual notice of any kind or only formal written notice triggers the seven-day period within which the movant must file. Compare Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357, 359 (8th Cir. 1994) (seven-day period commences upon actual notice of entry of the judgment or order), and Nunley, 52 F.3d at 794 (9th Cir. 1995) (same), with Ryan v. First Unum Life Ins. Co., 174 F.3d 302, 305 (2d Cir. 1999) (seven-day period commences upon written notice of entry of the judgment or order received from the court clerk or another party), Bass v. United States Dep't of Agriculture, 211 F.3d 959, 963 (5th Cir. 2000) (same), and Benavides v. Bureau of Prisons, 79 F.3d 1211, 1214-15 (D.C. Cir. 1996) (same).
The court need not decide whether actual or written notice is required, however, because it finds that defendants in this case did not receive either until April 3, 2002. Counsel for each defendant aver that they did not receive any notice of this court's order denying their post-trial motion until April 3, 2002. On the other hand, it is undisputed that counsel for defendants, Assistant Attorney General Diann Marsalek, received a copy of this court's February 19 order requesting that counsel for plaintiff notify the court if a ruling was still necessary on plaintiff's petition for attorney's fees. Furthermore, on March 20 defendants also received the court's March 14 order granting attorney's fees. Plaintiff argues that "[n]o reasonable attorney could read this Court's order awarding attorney's fees and conclude that the underlying Motion for Judgment as a Matter of Law or In the Alternative for a New Trial had not yet been decided." (Pl.'s Resp. at 2.) Plaintiff also argues that defendants failed to diligently check the docket in this case to ascertain the fate of their motion. However, plaintiff's "reasonable attorney" and "diligence" standards are not the correct test under Rule 4(a)(6). Although the Seventh Circuit has provided little guidance on this subject, other courts hold that where the moving party has proved nonreceipt of notice and no other party would be prejudiced, denial of a Rule 4(a)(6) motion cannot rest on a failure to show "excusable neglect," which is a requirement of Rule 4(a)(5). Nunley, 52 F.3d at 798. In other words, relief cannot be denied simply because the moving party (for whatever reason) did not learn independently of the entry of the order in order to file a timely appeal. See id. (holding that the "concept of excusable neglect has no place in the application of Rule 4(a)(6)"); Avolio v. County of Suffolk, 29 F.3d 50, 53 (2d Cir. 1994). Rule 4(a)(6) "provides an avenue of relief separate and apart from Rule 4(a)(5)," so basing the district court's discretion on a showing of "`excusable neglect' would unduly undercut" Rule 4(a)(6). Nunley, 52 F.3d at 798.
Even if this court were to engage in an inquiry as to whether defendants acted reasonably in this case, it would find in their favor. Regarding defendants' receipt of the March 14 order awarding attorney's fees, the court notes that the order contains no mention of the February 13 order denying defendants' motion for judgment as a matter of law. The court will not impose a duty on defendants under Rule 4(a)(6) to predict the outcome of their motions based on the content of related orders. Cf. Nguyen v. Southwest Leasing Rental, Inc., 282 F.3d 1061, 1065 (9th Cir. 2002) ("Allowing proof of anecdotal evidence would thwart the purpose of the rule, which is to ensure that the losing party understands that judgment has, in fact, been entered so that appropriate action may be taken. Learning that judgment may have been entered, rather than it has been entered, normally will trigger a different response."). Furthermore, the court has never found Ms. Marsalek to lack either the candor or the diligence required of an Assistant Attorney General. The attorneys in that office are remarkably busy. The court is not surprised in the least to hear that, without receiving a mailed copy of the order, counsel for defendants did not discover this court's February 13 order denying their motion for judgment as a matter of law until almost two months after it was entered. The court finds that defendants received notice of the order on April 3, 2002. They filed their motion to reopen the time to file an appeal the next day. They have satisfied the requirements of Rule 4(a)(6) and their motion is granted.