State National Insurance Co v. County of Camden, et al

Filing

PRECEDENTIAL OPINION Coram: FISHER, CHAGARES and JORDAN, Circuit Judges. Total Pages: 45. Judge: FISHER Authoring, Judge: JORDAN Dissenting.

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 14-4766
______
STATE NATIONAL INSURANCE COMPANY,
Appellant
v.
THE COUNTY OF CAMDEN; DONNA WHITESIDE
______
On Appeal from United States District Court
for the District of New Jersey
(D. N.J. No. 1-08-cv-05128)
District Judge: Honorable Noel L. Hillman
______
Argued on September 16, 2015
Before: FISHER, CHAGARES and JORDAN, Circuit
Judges.
(Opinion Filed: May 24, 2016)
Walter J. Andrews, Esq. [ARGUED]
Michael S. Levine, Esq.
Hunton & Williams

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1751 Pinnacle Drive, Suite 1700
McLean, VA 22102
Joshua S. Paster, Esq.
Hunton & Williams
200 Park Avenue, 52nd Floor
New York, NY 10166
Counsel for Appellant
Catherine J. Bick, Esq.
Michael J. Canning, Esq. [ARGUED]
Matthew N. Fiorovanti, Esq. [ARGUED]
Giordano Halleran & Ciesla
125 Half Mile Road, Suite 300
Red Bank, NJ 07701
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
State National appeals from the dismissal of its
claims against Donna Whiteside for legal malpractice. The
District Court dismissed State National’s claims because State
National could not demonstrate that Whiteside’s actions
proximately caused State National to suffer any damages. In

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this case, we must first determine whether this Court has
jurisdiction over State National’s appeal. Only then may we
determine whether the District Court erred in dismissing the
claims against Whiteside.
For the reasons that follow, we hold that this Court
lacks jurisdiction over State National’s appeal because it was
untimely. Accordingly, we do not reach the merits of State
National’s claim that Whiteside was improperly dismissed
from its case.
I.
A.

Factual History

This dispute centers on Donna Whiteside’s
representation of the County of Camden, New Jersey
(“County”) in a lawsuit brought by Nicholas Anderson, which
resulted in a jury award paid, in part, by the County’s excess
insurer, State National Insurance Company (“State
National”).
On December 23, 2004, Nicholas Anderson was
seriously injured after crashing his car into a guardrail on a
road owned and maintained by the County. Anderson filed
suit against the County for negligence in maintaining the road
and guardrail and sought $5 million in damages.
The County maintained an insurance policy with State
National whereby the County was responsible for the first
$300,000 of losses and State National’s obligations were
triggered only if a potential loss exceeded this amount. In
order to invoke State National’s coverage obligations, the
policy required the County to “provide an adequate defense
and investigation of any action for or notice of any actual,
potential or alleged damages.” In the event that the County
failed to meet this requirement, the policy provided that State

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National “shall not be liable for any damages or costs or
expenses resulting from any such occurrence.” The policy
limit was $10 million.
Pursuant to the policy, the County utilized its own inhouse attorney, Donna Whiteside, Assistant County Counsel,
to defend the County against the Anderson lawsuit.
According to State National, the County did not notify State
National of the Anderson lawsuit until several months after it
was filed and after the County first became aware of the
claims against it. Whiteside initially informed State National
that the case was meritless and valued it at $50,000. In the
midst of trial, Whiteside changed her valuation and requested
the full $10 million policy limit to settle the claims with
Anderson. After receiving this valuation, State National
conducted an independent review and denied the County’s
request for $10 million. After the parties failed to settle, the
Anderson case continued to trial. On October 17, 2008, the
jury reached a verdict in favor of Anderson and awarded him
$31 million, which was later remitted to $19 million.
B.

Procedural History

Four days after the verdict in the Anderson case, State
National filed suit, seeking a declaratory judgment that it was
not obligated to provide coverage under the policy because
the County had breached the policy contract. It alleged that
the County failed to timely notify State National of the case
and failed to mount an adequate investigation and defense of
the lawsuit, as required by the policy. State National also
asserted claims directly against Whiteside for professional
negligence, legal malpractice, breach of fiduciary duty, and
breach of contract.
In its first amended complaint, State National alleged
that Whiteside’s defense of the case fell well below

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“adequate” because she did not present evidence or assert
defenses that would have either totally cut off the County’s
liability or would have substantially lowered Anderson’s
recovery. Specifically, State National alleges that she did not
present expert reports or testimony, raise available statutory
defenses, or cross-examine Anderson’s expert witnesses.
Because Whiteside advised State National on the case status,
progress, and likely outcome, State National claims that an
attorney-client relationship existed between it and Whiteside.
Whiteside moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. On
March 17, 2010, the District Court granted her motion,
holding that the County and Whiteside were not two distinct
entities based on respondeat superior and the contract
between State National and the County, and thus any liability
of Whiteside must be borne by the County. Moreover, the
District Court found no proximate cause because if Whiteside
did not provide an adequate defense, then State National was
not obligated to pay. But if Whiteside did provide an adequate
defense, then State National was subject only to its existing
contractual duty to pay.
Following the dismissal, on March 30, 2010, State
National filed a motion under Rule 59(e), asking the District
Court to reconsider its dismissal of Whiteside. The District
Court denied State National’s motion on June 25, 2010. The
District Court also denied State National’s motion for
certification under Rule 54(b), which if granted, would have
allowed State National to immediately appeal Whiteside’s
dismissal.
Although Whiteside was dismissed from the litigation,
State National’s case against the other defendants went on.
Over the next four years, all of State National’s claims against

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the other defendants were resolved, and only the claims
against the County remained. Eventually, the District Court
denied State National’s motion for summary judgment on its
remaining claims against the County. State National alleges
that in the District Court’s March 31, 2014, order denying
summary judgment, the District Court undermined its prior
ruling that served as the basis for dismissing Whiteside.
Accordingly, State National sought leave to renew its claims
against Whiteside under Rule 60(b)(6), which permits the
District Court to grant relief from a final judgment, order, or
proceeding.
Before the District Court ruled on State National’s
Rule 60(b)(6) motion, State National and the County reached
a settlement. The parties filed a joint Stipulation of Dismissal
with prejudice pursuant to Rule 41(a)(1)(A)(ii) on October
14, 2014. The Stipulation of Dismissal acknowledged that
State National wanted to renew its claims against Whiteside,
but State National made no motion or request before the
District Court apart from the clause in the Stipulation of
Dismissal.
On December 1, 2014, the District Court denied State
National’s Rule 60(b)(6) motion to renew the claims against
Whiteside. It rested on the same reasoning as its earlier ruling
and rejected State National’s arguments that its March 31,
2014, order called any of its prior rulings into question. In
that opinion, the District Court ordered the clerk of court to
terminate the litigation and close the case.
The case was closed on December 1, 2014. State
National filed its Notice of Appeal on December 16, 2014. In
the Notice of Appeal, State National sought an appeal from
the District Court’s December 1, 2014, order denying its
motion under Rule 60(b)(6) to reinstate its claims against

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Whiteside. The Notice did not reference the underlying Rule
12(b)(6) dismissal, and it was filed sixty-two days after the
Stipulation of Dismissal had been entered.
II.
The District Court had jurisdiction pursuant to 28
U.S.C. § 1332. Before reaching the merits of this appeal, we
must consider whether we have appellate jurisdiction.1 We
exercise plenary review in answering this question.2
“The timeliness of an appeal is a mandatory
jurisdictional prerequisite.”3 Under Federal Rule of Appellate
Procedure 4(a)(1), the appellant must file a Notice of Appeal
“with the district clerk within 30 days after entry of the
judgment or order appealed from.”4 Because the thirty-day
time limit embodied in Rule 4(a)(1) derives from a statute, it
is a “jurisdictional requirement.”5
In addition to the requirement that it must be timely
filed, the Notice of Appeal must also specify the “judgment,
order, or part thereof being appealed.”6 If an appeal is taken
only from a specified judgment, this Court does not exercise
1

Rothman v. United States, 508 F.2d 648, 651 (3d Cir.
1975) (“Before a court may properly address the merits of an
appeal, it is mandated to determine whether it has jurisdiction
to consider the appeal.”).
2
See In re Fosamax (Alendronate Sodium) Prods.
Liab. Litig. (No. II), 751 F.3d 150, 155 (3d Cir. 2014).
3
Poole v. Family Court of New Castle Cty., 368 F.3d
263, 264 (3d Cir. 2004) (citing United States v. Robinson, 361
U.S. 220, 224 (1960)).
4
Fed. R. App. P. 4(a)(1)(A).
5
See Bowles v. Russell, 551 U.S. 205, 214 (2007).
6
Fed. R. App. P. 3(c)(1)(B).

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jurisdiction to review other judgments that were not specified
or “fairly inferred” by the Notice.7
In our case, State National faces two hurdles with
respect to this Court’s appellate jurisdiction. First, the parties
voluntarily dismissed this case on October 14, 2014—sixtytwo days before State National filed its Notice of Appeal.
Because of the mandatory jurisdictional prerequisite
embodied in Federal Rule of Appellate Procedure 4(a)(1)(A),
we permitted the parties to submit supplemental briefing on
the issue of whether the parties’ voluntary termination of the
case constituted a final judgment from which the thirty-day
time limit in Rule 4 began to run.
Second, even if the Stipulation of Dismissal did not
trigger the thirty-day time limit, State National’s Notice of
Appeal specified only the District Court’s December 1, 2014,
order denying State National’s Rule 60(b)(6) motion. It made
no mention of the underlying dismissal of Whiteside on Rule
12(b)(6) grounds. Yet, in its brief before this Court, State
National argued only that the Rule 12(b)(6) dismissal was
error; it made no arguments that the District Court erred in
denying its motion under Rule 60(b)(6).
A.
The first issue we must address is whether State
National’s Notice of Appeal was timely. Federal Rule of
Appellate Procedure 4(a)(1)(A) required State National to file
its Notice of Appeal within thirty days of the judgment it was
appealing. Here, State National filed its Notice on December
14, 2014, well within thirty days of the order denying its Rule
60(b) motion on December 1, 2014.
7

Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184
(3d Cir. 2010).

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Although at first glance, the timeline of State
National’s appeal seems to comport with the requirements of
Rule 4, the nature of State National’s Rule 60(b) motion and
the Stipulation of Dismissal complicate the issue.
1. State National’s Rule 60(b) Motion
The District Court dismissed State National’s claims
against Whiteside on Rule 12(b)(6) grounds on March 17,
2010—nearly four and a half years before this appeal was
taken. After Whiteside’s dismissal, the case was not
immediately appealable because other parties and claims
remained in the litigation.8 More than four years later, on
March 31, 2014, the District Court denied summary judgment
on State National’s claims against the County. State National,
believing this opinion called into question Whiteside’s
dismissal, sought to get another bite at the apple before an
appeal to this Court.
In order to get review of the District Court’s earlier
dismissal of Whiteside, State National filed a Rule 60(b)(6)
motion on April 25, 2014, asking the District Court to
reconsider its prior dismissal. Although Rule 59(e) would
have been the most obvious route to get reconsideration of the
prior dismissal, State National had already done so four years
earlier. Without the ability to file a timely motion under Rule

8

Fed. R. Civ. P. 54(b) (“[A]ny order or other decision,
however designated, that adjudicates fewer than all the claims
or the rights and liabilities of fewer than all the parties does
not end the action as to any of the claims or parties and may
be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and
liabilities.”).

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59(e),9 State National attempted to reinstate its claims against
Whiteside using Rule 60(b)(6), which provides that “the court
may relieve a party … from a final judgment, order, or
proceeding for … any other reason that justifies relief.”10
But Rule 60(b) grants the district court the power to
relieve a party from a “final judgment, order, or
proceeding.”11 The March 17, 2010, order dismissing
Whiteside—and not all of the defendants—was not a final
order. Rather, it was an interlocutory order that was not
immediately appealable unless the District Court certified it
under Rule 54(b), which it refused to do.12 Thus, because the
underlying dismissal of Whiteside was not a “final judgment,
9

Rule 59(e) requires the motion to reconsider the
judgment be filed “no later than 28 days after the entry of
judgment.” Fed. R. Civ. P. 59(e). Whiteside was dismissed
four years before State National filed its motion to renew its
claims against Whiteside.
10
Fed. R. Civ. P. 60(b)(6).
11
Fed. R. Civ. P. 60(b) (emphasis added); see also
Fed. R. Civ. P. 60(b) advisory committee’s note to 1946
amendment (“The addition of the qualifying word ‘final’
emphasizes the character of the judgments, orders or
proceedings from which Rule 60(b) affords relief; and hence
interlocutory judgments are not brought within the restrictions
of the rule, but rather they are left subject to the complete
power of the court rendering them to afford such relief from
them as justice requires.”).
12
“When an action presents more than one claim for
relief … or when multiple parties are involved, the court may
direct entry as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no
just reason for delay.” Fed. R. Civ. P. 54(b).

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order, or proceeding,” State National’s Rule 60(b)(6) motion
was not a proper avenue by which to challenge her
dismissal.13
Apart from Rule 60(b), the District Court has the
inherent power to reconsider prior interlocutory orders. Under
its inherent powers, the District Court could have reinstated
Whiteside at any point during which the litigation continued.
The power to reconsider prior interlocutory orders depends on
the District Court retaining jurisdiction over the case.14
2. The Stipulation of Dismissal
The parties, however, filed a Stipulation of Dismissal
under Rule 41(a)(1)(A)(ii), and pursuant to that Stipulation,
the parties agreed to voluntarily dismiss the case. Rule
41(a)(1)(A)(ii) provides that “the plaintiff may dismiss an
13

See Torres v. Chater, 125 F.3d 166, 167-68 (3d Cir.
1997); see also Kapco Mfg. Co. v. C & O Enters., Inc., 773
F.2d 151, 154 (7th Cir. 1985) (“Rule 60(b) must be limited to
review of orders that are independently ‘final decisions’
under 28 U.S.C. § 1291. A party should not get immediate
review of an order for discovery, or one denying summary
judgment and setting the case for trial, just by filing a Rule
60(b) motion to set aside the order and then appealing the
denial of this motion.”).
14
See United States v. Jerry, 487 F.2d 600, 605 (3d
Cir. 1973) (“[S]o long as the district court has jurisdiction
over the case, it possesses inherent power over interlocutory
orders, and can reconsider them when it is consonant with
justice to do so.”) (emphasis added); United States v.
LoRusso, 695 F.2d 45, 53 (2d Cir. 1982) (“A district court has
the inherent power to reconsider and modify its interlocutory
orders prior to the entry of judgment ….”) (emphasis added).

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action without a court order by filing … a stipulation of
dismissal signed by all parties who have appeared.”15
The language of the rule makes clear that a dismissal
under Rule 41(a)(1)(A)(ii) does not require a court order, nor
does it require the approval of the court.16 Because a
dismissal under Rule 41(a)(1)(A)(ii) does not require a court
order or approval, we have held that “[t]he entry of such a
stipulation of dismissal is effective automatically.”17
State National’s argument that Rule 58 requires a
separate entry of judgment is unavailing. Every court to have
considered the nature of a voluntary stipulation of dismissal
under Rule 41(a)(1)(A)(ii) has come to the conclusion that it
is immediately self-executing.18 No separate entry or order is
required to effectuate the dismissal.
Once the voluntary stipulation is filed, the action on
the merits is at an end.19 “[A]ny action by the district court
after the filing of [the Stipulation of Dismissal] can have no
15

Fed. R. Civ. P. 41(a)(1)(A)(ii).
Id.; see also 9 Charles Alan Wright & Arthur R.
Miller, Federal Practice & Procedure § 2363 (3d ed. 2015).
17
First Nat’l Bank of Toms River, N.J. v. Marine City,
Inc., 411 F.2d 674, 677 (3d Cir. 1969).
18
E.g., Anago Franchising, Inc. v. Shaz, LLC, 677
F.3d 1272, 1277-78 (11th Cir. 2012); De Leon v. Marcos, 659
F.3d 1276, 1283 (10th Cir. 2011); SmallBizPros, Inc. v.
MacDonald, 618 F.3d 458, 461 (5th Cir. 2010); Jenkins v.
Vill. of Maywood, 506 F.3d 622, 624 (7th Cir. 2007);
Gardiner v. A.H. Robins Co., 747 F.2d 1180, 1189 (8th Cir.
1984).
19
Smith v. Phillips, 881 F.2d 902, 904 (10th Cir.
1989).
16

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force or effect because the matter has already been
dismissed.”20 A voluntary dismissal deprives the District
Court of jurisdiction over the action.
The Dissent criticizes our discussion of Anago
Franchising, SmallBizPros, and Smith as a line of cases
arising out of the Supreme Court’s decision in Kokkonen v.
Guardian Life Insurance Company of America.21 But
Kokkonen is not relevant here. Kokkonen speaks to the
District Court’s ancillary jurisdiction to enforce the settlement
agreement that served as a basis for the parties’ stipulated
dismissal. In this case, the parties are not concerned with
enforcing their settlement agreement. Rather, we are
concerned with the District Court’s jurisdiction over the
original matter.
The Dissent misinterprets the basis of our holding:
Kokkonen does not compel the conclusion that the Stipulation
of Dismissal divested the District Court of jurisdiction; the
Federal Rules of Civil Procedure do. Long before the
Supreme Court decided Kokkonen, we held that a stipulated
dismissal under Rule 41 was automatic.22 We have also held
that a “timely notice of voluntary dismissal invites no
response from the district court and permits no interference
20

SmallBizPros, 618 F.3d at 463; see also Anago
Franchising, 677 F.3d at 1279-80 (“A district court loses all
power over determinations of the merits of a case when it is
voluntarily dismissed.”); Versata Software, Inc. v. Callidus
Software, Inc., 780 F.3d 1134, 1136 (Fed. Cir. 2015)
(vacating its own opinion, which was issued after the parties
voluntarily dismissed their case pursuant to Rule
41(a)(1)(A)(ii)).
21
Dissent at 6-7 n.2.
22
First Nat’l Bank, 411 F.2d at 677.

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by it.”23 The Dissent attempts to distinguish the cases cited
here as merely invoking the Kokkonen principle, but both
Versata Software, Inc. v. Callidus Software, Inc. and
Meinecke v. H&R Block of Houston focus on the broader
concerns relevant here.
In Versata Software, the Federal Circuit vacated its
own opinion because it was issued after the parties voluntarily
dismissed their case before the case had been decided.24
Recognizing that the joint stipulation of dismissal between
the parties automatically dismissed the case “with no further
action of the district court required,” the Federal Circuit held
that “there was no longer a controversy” pertinent to the
parties’ appeal.25
Similarly, in Meinecke v. H&R Block of Houston, the
Fifth Circuit held that the District Court’s grant of summary
judgment in favor of the defendants was “of no consequence”
because the parties had three days earlier filed a stipulation of
dismissal pursuant to Rule 41(a)(1)(A)(ii).26 Even though the
District Court’s order approving of the stipulated dismissal
was handed down on the same day as the order granting
summary judgment, the Fifth Circuit recognized that the
dismissal was effective when filed, and “any further actions
by the court [were] superfluous.”27
3. The Final Judgment
After the stipulated dismissal, there was nothing left
23

In re Bath & Kitchen Fixtures Antitrust Litig., 535
F.3d 161, 165 (3d Cir. 2008).
24
780 F.3d at 1136.
25
Id. (citing First Nat’l Bank, 411 F.2d 674).
26
66 F.3d 77, 82 (5th Cir. 1995) (per curiam).
27
Id. (internal quotation marks omitted).

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for the District Court to do. The Stipulation of Dismissal
“resolv[ed] the matter.”28 “A final judgment is ‘one which
ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.’”29 A final order
accomplishes two ends: it disposes of all of the claims
presented to the district court, and it leaves “nothing further
for the district court to do.”30
Following the Stipulation of Dismissal, all of the
claims against all of the parties remaining in the litigation had
been resolved. Because Whiteside was no longer a party to
the litigation, and the District Court had not exercised its
inherent power to review its previous interlocutory order
dismissing her, the only claims remaining were the claims
asserted by State National against the County. Because the
Stipulation of Dismissal resolved these claims, the Stipulation
of Dismissal was a final judgment. 31
28

Lusardi v. Xerox Corp., 975 F.2d 964, 970 n.9 (3d
Cir. 1992).
29
Riley v. Kennedy, 553 U.S. 406, 419 (2008).
30
Michelson v. Citicorp Nat’l Servs., Inc., 138 F.3d
508, 513 (3d Cir. 1993) (internal quotation marks omitted).
31
This Court and others have also recognized that a
voluntary dismissal with prejudice constitutes a final order,
thereby making interlocutory orders appealable. See, e.g.,
Blue v. D.C. Pub. Schs., 764 F.3d 11, 17 (D.C. Cir. 2014)
(stating that “[e]very circuit permits a plaintiff, in at least
some circumstances, voluntarily to dismiss remaining claims
or remaining parties from an action as a way to conclude the
whole case in the district court and ready it for appeal” and
collecting cases); M&K Welding, Inc. v. Leasing Partners,
LLC, 386 F.3d 361, 364 (1st Cir. 2004) (holding that the
parties’ Stipulation of Dismissal with prejudice was a final

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State National’s Rule 60(b) motion did not prevent the
Stipulation of Dismissal from serving as the final judgment.
State National’s claims against Whiteside had already been
resolved, and every available method of reinstating its claims
against her had been exhausted.32 State National cannot rely
on an improper procedural motion to argue that its own
dismissal of the case was not a final judgment. Because the
District Court could not have reinstated the claims against
Whiteside after the stipulated dismissal, there was “nothing
further for the district court to do.”33
Nor does the single statement in the Stipulation of
Dismissal that nothing in the settlement “shall be construed in
any way to release or otherwise limit the claims State
National has asserted or may assert against Donna Whiteside”
prevent finality. The parties did not make their dismissal
contingent on the District Court’s ruling on State National’s
judgment); O’Boyle v. Jiffy Lube Int’l, Inc., 866 F.2d 88, 92
(3d Cir. 1989) (holding that a plaintiff’s voluntary dismissal
of his claims with prejudice constituted a final order that was
appealable); Nat’l Inspection & Repairs, Inc. v. George S.
May Int’l. Co., 600 F.3d 878, 883-84 (7th Cir. 2010) (holding
that, because the claims were dismissed with prejudice, there
was a final judgment for purposes of appellate review). See
also 15A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 3914.8 (2d ed. 2015) (“Voluntary
dismissal of the remaining parts of the case provides an
obvious means of achieving final disposition.”).
32
Anago Franchising, 677 F.3d at 1275 (“[V]oluntary
dismissal of a case strips the court of jurisdiction and leaves it
without the power to make legal determinations on the
merits.”).
33
See Michelson, 138 F.3d at 513.

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Rule 60(b) motion. And the parties did not make a motion
before the District Court for it to decide on whether the
claims against Whiteside should be reinstated before
dismissing the case. Moreover, State National and the County
cannot speak for Whiteside in their stipulated dismissal;
Whiteside had already been dismissed from the litigation
years earlier.
The Dissent argues that, because the District Court
“[a]fter the stipulation of dismissal … both accepted briefing
from the parties and issued an order permitting additional
briefing,” the District Court “intended to retain jurisdiction
until it ruled on State National’s motion”34 and “to exercise
its inherent power to reconsider [its prior] decision.”35 The
District Court’s actions, however, cannot override the
application of jurisdictional rules, as both this Court and the
Supreme Court have held. The Dissent’s position is just dead
wrong.
In Lizardo v. United States, we held that an untimely
Rule 59(e) motion does not toll the time to appeal under Rule
4(a)(4)(A) “even if the party opposing the motion did not
object to the motion’s untimeliness and the district court
considered the motion on the merits.”36 We expressed
concern about basing the timeliness of post-judgment motions
on what occurred in the District Court because such a system
would inject uncertainty into the appeal timeline and would
be based on the “happenstance of a particular litigation.”37
Instead, the Federal Rules of Appellate Procedure require
34

Dissent at 9.
Dissent at 4.
36
Lizardo v. United States, 619 F.3d 273, 278 (3d Cir.
2010) (emphasis added).
37
Id. at 279.
35

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uniformity. Thus, we held that the appellant’s appeal was
untimely even though the District Court in that case had ruled
on the merits of his Rule 59(e) motion.
Similarly, the Supreme Court, in Bowles v. Russell, in
rejecting the “unique circumstances doctrine,”38 held that a
District Court’s assurances about timeliness, and a party’s
good faith reliance on them, are not enough to cure a
jurisdictional defect.39 There, the District Court had told the
appellant Bowles that he had seventeen days to file his notice
of appeal. In reality, he had only fourteen. Bowles filed his
notice of appeal on the sixteenth day—one day before the
District Court’s deadline and two days after the actual
deadline.40 The deadline was jurisdictional, and as a result, it
could not be tolled or waived. Thus, the Court held, his notice
of appeal was untimely, and it dismissed his appeal.41
These cases demonstrate that no matter how wellmeaning the District Court’s actions may be, they cannot
confer jurisdiction where it is lacking. And the District
Court’s erroneous consideration of an improper or untimely
motion cannot alter the timeliness requirements of Federal
Rule of Appellate Procedure 4(a). In this case, the District
Court’s consideration of State National’s Rule 60(b) motion
cannot confer jurisdiction where the case had already been
dismissed. Because of the dismissal, no claims remained
against any party still involved in the litigation; the stipulated
38

“The “unique circumstances doctrine” permitted
appellate courts to excuse untimeliness where a party
belatedly acted in reliance on an erroneous district court
ruling.” Mobley v. C.I.A., 806 F.3d 568, 577 (D.C. Cir. 2015).
39
551 U.S. 205, 214-15 (2007).
40
Id. at 207.
41
Id. at 206-07, 215.

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dismissal was the final decision.
4. Appealability and Tolling
Once an order becomes “final,” the time for appeal
begins to run.42 Following the final judgment, Federal Rule of
Appellate Procedure 4(a) provides that the party wishing to
appeal has thirty days to do so. State National did not file
within thirty days of its joint Stipulation of Dismissal—the
final judgment. Therefore, State National’s appeal—sixty-two
days after the final judgment—was untimely. The thirty-day
time requirement in Federal Rule of Appellate Procedure 4(a)
is jurisdictional and mandatory, and the failure to comport
with this mandatory deadline deprives this Court of appellate
jurisdiction.
Contrary to State National’s contention, none of the
tolling provisions of Federal Rule of Appellate Procedure
4(a)(4)(A) is applicable here. State National argues that its
Rule 60(b) motion tolled the time to file its appeal. Under
Federal Rule of Appellate Procedure 4(a)(4)(A)(vi), a Rule
60(b) motion “filed no later than 28 days after the judgment is
entered,” tolls the time to file an appeal.43 The time to appeal
runs from the entry of the order disposing of the Rule 60(b)
motion. But as previously explained, State National’s motion
to renew its claims was not a proper Rule 60(b) motion.
“[T]he function of the motion, and not the caption, dictates
which Rule is applicable.”44 Because State National’s motion
was not actually a Rule 60(b) motion, its motion to renew its
claims against Whiteside cannot extend the time to file an
42

Lusardi v. Xerox Corp., 975 F.2d at 970 n.9.
Fed. R. App. P. 4(a)(4)(A)(vi).
44
United States v. Fiorelli, 337 F.3d 282, 287-88 (3d
Cir. 2003).
43

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appeal under
4(a)(4)(A)(vi).

Federal

Rule

Page: 20

of

Appellate

Date Filed: 05/24/2016

Procedure

State National’s motion was also not a timely Rule
59(e) motion that could operate to extend the time to file a
timely appeal. Under Federal Rule of Appellate Procedure
4(a)(4)(A)(iv), if a party timely files a motion to alter or
amend the judgment under Rule 59, the time to file an appeal
runs from the entry of the order disposing of such motion. A
Rule 59 motion is timely when it is filed within twenty-eight
days of the order or judgment for which reconsideration is
sought.45 State National had previously filed a timely Rule 59
motion on March 20, 2010, immediately after Whiteside was
first dismissed from the litigation.46 Its motion to renew its
claims against Whiteside, which State National contends tolls
the time to appeal, was not filed within twenty-eight days of
Whiteside’s dismissal and thus cannot extend the time for
State National to appeal.
The Dissent questions why we cannot consider State
National’s Rule 60(b) motion as a premature motion that
“ripened” after the Stipulation of Dismissal was filed. Even if
we assume that State National’s Rule 60(b) motion was the
proper means of getting review of Whiteside’s dismissal, it
would still not toll the time to appeal. This is because Federal
45

Fed. R. Civ. P. 59.
The Dissent does not address this fact, but it is an
important one. The Rule 60(b) motion was another attempt by
State National to relitigate Whiteside’s dismissal. But the
District Court’s decision denying State National’s Rule 59(e)
motion—as well as its decision granting Whiteside’s
dismissal under Rule 12(b)(6)—could have been appealed
when the clock ran from the date the Stipulation of Dismissal
was entered.
46

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Rule of Appellate Procedure 4(a)(4)(A)(iv) permits tolling of
the time to appeal if a Rule 60 motion is “filed no later than
28 days after the judgment is entered.” In State National’s
view, the judgment entered is Whiteside’s dismissal.
However, that judgment was entered years before State
National filed its Rule 60(b) motion. Thus, under either view
of the nature of State National’s Rule 60(b) motion, tolling is
inapplicable.47
The Dissent also argues that “motions invoking Rule
60(b) should be treated flexibly and functionally.”48 In
making this argument, the Dissent relies on Torres v. Charter,
in which this Court allowed appeal of the denial of a Rule
60(b) motion, even though the motion sought review of a
supposedly interlocutory order.49 In that case, however, the
“interlocutory” order subject to the Rule 60(b) motion was a
district court’s order to remand a claimant’s Social Security
disability claim to the Commissioner of the Social Security
Administration. This Court explained that if we did not
entertain the appeal, “on remand the claimant may receive an
award of benefits, in which event he will not appeal, and it is
very doubtful the Commissioner could appeal.”50 Under those
47

The Dissent also claims that we are “abolishing Rule
60(b) relief for parties in State National’s position.” Dissent
at 17 n.7. But this is far from the case. Because State
National’s motion sought review of an interlocutory order, it
was not a true Rule 60(b) motion. We do not suggest that
State National could never have sought Rule 60(b) relief—
only that it could not do so before a “final judgment, order, or
proceeding.”
48
Dissent at 13.
49
125 F.3d at 168-69.
50
Id. at 168.

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circumstances, we held that such an order was final and could
be the basis for a Rule 60(b) motion because it was likely that
appellant would be unable to secure appellate review of that
decision. That situation is not applicable here. After the
stipulated dismissal, State National could have appealed the
underlying dismissal of Whiteside on Rule 12(b)(6) grounds.
Thus, State National was not unable to secure appellate
review of Whiteside’s dismissal, and Torres’s exception to
the requirement of finality for Rule 60(b) motions is
inapposite.
It is strict to require State National to file an appeal
while the District Court was apparently still considering State
National’s Rule 60(b) motion, even if it was an improper one.
But jurisdiction is a “strict master.”51 The Stipulation of
Dismissal was effective immediately, and because all of the
remaining claims were resolved by that Stipulation, the
stipulated dismissal was a final judgment from which the time
to appeal began to run. State National’s failure to appeal
within thirty days of the final judgment deprives this Court of
jurisdiction to hear its appeal. The District Court’s
consideration of a motion that it lacked the power to grant or
deny cannot excuse this failure.
B.
Because we hold that we lack jurisdiction on the basis
of State National’s untimely notice of appeal, we do not reach
the alternative jurisdictional argument advanced by Whiteside
that a notice of appeal that references only an order denying a
Rule 60(b) motion does not draw into question an underlying

51

SmallBizPros, Inc., 618 F.3d at 464.

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dismissal under Rule 12(b)(6).52
III.
For the foregoing reasons, we will dismiss this case for
lack of jurisdiction.

52

See Elliot v. Archdiocese of N.Y., 682 F.3d 213, 219
(3d Cir. 2012) (“[I]f we determine that we do not have
jurisdiction over this appeal, our ‘only function remaining [is]
that of announcing the fact and dismissing the cause.’”
(quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94 (1998))).

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State National Insurance Co. v. County of Camden et al., No.
14-4766
JORDAN, Circuit Judge, dissenting.
The Majority acknowledges that its interpretation of
the operative rules of procedure is “strict.” (Majority Op. at
22.) But the interpretation goes beyond strict; with all
respect, it is wrong. I therefore dissent from the dismissal of
the appeal.
Here are the key procedural steps and the dates on
which they occurred. The District Court dismissed State
National Insurance Company’s claims against Donna
Whiteside in an order dated March 17, 2010. Over four years
later, on April 25, 2014, State National filed a motion for
leave to renew its malpractice claims against Whiteside,1
styled as a motion pursuant to Fed. R. Civ. P. 60(b)(6). The
District Court initiated active litigation by soliciting briefing
and ordering settlement negotiations.
The litigation
proceeded between Whiteside and State National with neither
party questioning the District Court’s jurisdiction. During the
battle over the motion to reinstate the claims against
Whiteside, State National separately entered a stipulation of
dismissal with the County of Camden on October 14, 2014.
Nothing in the stipulation limited State National’s efforts to
renew its claims against Whiteside. On the contrary, the
stipulation provided that it should not be construed “in any
way to release or otherwise limit” those claims. (App. 326.)
1

State National’s claims against Whiteside comprised
allegations of professional negligence, legal malpractice,
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The District Court then entered an order, on December 1,
2014, denying State National’s motion for leave to proceed
with its claims against Whiteside, and, in the same order,
directed that the matter be marked as closed. State National
filed its notice of appeal on December 16, 2014.
As my colleagues in the Majority see it, even though
State National was trying to obey court orders to actively
litigate its motion to reinstate its claims against Whiteside, it
was actually allowing the clock to run on its time to appeal.
All that litigation wound up being a nullity. It turns out that,
unbeknownst to the District Court or the parties, State
National was foolishly forfeiting claims worth perhaps
millions of dollars. As the Majority would have it, State
National could only maintain its appeal rights by choosing
between two bad alternatives: it could abandon its settlement
of its separate claim against the County, or it could appeal the
dismissal of the claims against Whiteside even as the District
Court was actively reconsidering that dismissal. The federal
rules of civil procedure and of appellate procedure are meant
to permit the “just, speedy, and inexpensive determination of
every action and proceeding,” Fed. R. Civ. P. 1, and to allow
district courts to fully resolve all issues in the first instance so
that appellate review is not “piecemeal,” Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 170 (1974). It would therefore be
strange if the rules really did put State National in that bind.
But, properly understood, they do not.
The Majority has the rules wrong, but it is correct that
the October 14, 2014 stipulation of dismissal terminated the
litigation between State National and the County. It is also
correct that the District Court had the power to reinstate the
claims against Whiteside either through its inherent powers to

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reverse an interlocutory decision or through ruling on a Rule
60 motion. The Majority incorrectly concludes, however, that
the District Court failed to reinstate State National’s claims
through either of those means. I disagree. Though the
stipulation of dismissal did terminate State National’s suit
against the County, it did nothing to divest the Court of
jurisdiction over the entirely separate claims against
Whiteside. Therefore, whether characterized as a motion
invoking the District Court’s inherent power or a Rule 60(b)
motion, State National’s motion did keep the matter against
Whiteside open until it was resolved by the District Court.
Therefore, the time to appeal did not begin to run until the
Court issued its December 1, 2014 order denying the motion,
and State National’s appeal is timely.
I.

Discussion

My colleagues acknowledge that, before the County
and State National filed their stipulation of dismissal, the
District Court had inherent authority to reinstate the claims
against Whiteside. They also seemingly recognize that, had
the order dismissing Whiteside been final before the
stipulation of dismissal, the District Court could have given
State National relief under Rule 60(b). But they nevertheless
hold that State National can get the benefit of neither of those
avenues for relief. The Majority says instead that the Court’s
inherent authority was lost when the stipulation of dismissal
was entered, and that Rule 60(b) relief was unavailable before
the stipulation of dismissal was entered because the order
dismissing Whiteside was not final. I reject both of those
conclusions and would hold that State National could have
received relief from the District Court by either route.

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The District Court’s Jurisdiction Under Its
Inherent Authority

The clearest way to resolve the question of timeliness
would be to rule that the dismissal of State National’s claims
against Whiteside was not final until December 1, 2014, when
the District Court denied State National’s motion to renew its
claims. It is true that the claims against Whiteside had earlier
been dismissed by what all agree was an interlocutory order,
but the District Court chose to exercise its inherent power to
reconsider that decision. State National filed its motion for
leave to renew its claims against Whiteside on April 25, 2014,
and three days later, the District Court set deadlines for
considering the motion. Both sides then actively litigated the
matter until it was finally decided on December 1. That was
thus the true date of final judgment on the claims against
Whiteside, at which point the time to appeal began to run.
The Majority reaches a contrary conclusion by saying
that the District Court was divested of any jurisdiction over
the claims against Whiteside when State National and the
County filed a stipulation of dismissal on October 14, 2014.
My colleagues seem to agree that, just a day earlier, the
dismissal of the claims against Whiteside was interlocutory
and unappealable, and that the District Court was free to
reinstate the claims against Whiteside. Yet, even as the
District Court was actively considering doing just that, it lost
jurisdiction, according to the Majority, because the plaintiff’s
claim against a separate defendant was settled.
To reach that conclusion, my colleagues rely upon a
series of cases that stand only for the unremarkable
proposition that when a plaintiff and a defendant resolve their

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dispute through a Rule 41 stipulation of dismissal, that
dispute ends and the district court loses jurisdiction. None of
the cases they cite, however, suggests that the stipulation has
any effect on ongoing litigation with a third party who is
expressly excluded from the stipulation of dismissal.
The two cases that the Majority considers in detail are
illustrative. In Versata Software, Inc. v. Callidus Software,
Inc., the Federal Circuit concluded that a pending
interlocutory appeal was mooted when the two parties
terminated their litigation through a Rule 41 stipulation of
dismissal. 780 F.3d 1134, 1136 (Fed. Cir. 2015). I agree that
any pending appeal between State National and the County
would have been mooted by their stipulation of dismissal, but
that says nothing about the separate claims against Whiteside.
In Meinecke v. H & R Block of Houston, the Fifth
Circuit voided a district court’s grant of summary judgment
on claims that had already been resolved by a Rule 41
stipulation of dismissal. 66 F.3d 77, 82 (5th Cir. 1995). Of
note, not only did that decision fail to affect non-parties to the
stipulation of dismissal; it did not even affect all the claims
among the parties to the stipulation. Immediately after
declaring contract claims against a defendant resolved by the
stipulation, the court went on to consider summary judgment
on discrimination claims against the very same defendant that
had not been resolved by the stipulation. Id. at 82-83. Just as
the Meinecke court could distinguish between claims resolved
by a stipulation of dismissal and those unaffected by it, we
should similarly distinguish between those claims terminated
in State National’s stipulation of dismissal with the County

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and those claims, against an entirely separate party, that were
expressly excluded from the stipulation.2
2

My colleagues in the majority also cite several cases
relying on the Supreme Court’s discussion of Rule
41(a)(1)(A)(ii) in Kokkonen v. Guardian Life Insurance
Company of America, 511 U.S. 375 (1994). In Kokkonen, the
Supreme Court considered whether, after the parties entered a
stipulation of dismissal under what is now Rule
41(a)(1)(A)(ii), a district court could exercise ancillary
jurisdiction to enforce those parties’ settlement agreement.
Id. at 378. The Court determined that, if the stipulation was
entered without any formal endorsement by the district court,
the court lost jurisdiction over enforcement. Id. at 380-81.
My colleagues agree that Kokkonen speaks only to a
district court’s ancillary jurisdiction and that the concern in
the present case is instead with “jurisdiction over the original
matter.” (Majority Op. at 13.) Nevertheless, they cite several
cases from other Circuits applying the Kokkonen principle.
E.g., Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272,
1279-80 (11th Cir. 2012); SmallBizPros, Inc. v. MacDonald,
618 F.3d 458, 463-64 (5th Cir. 2010); Smith v. Phillips, 881
F.2d 902, 904 (10th Cir. 1989). None of those cases involved
an additional party actively litigating separate issues unrelated
to the stipulation of dismissal. In such a case, which is what
we have before us now, a district court has ongoing subjectmatter jurisdiction without any need to assert ancillary
jurisdiction, so the holding in Kokkonen is not in play.
Kokkonen is instructive, however, because it tests the
constitutional bounds of district courts’ subject-matter
jurisdiction following a stipulation of dismissal. Even if
those strictures applied to this case, which they do not, the

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correct conclusion is that the District Court did retain
jurisdiction over the claims against Whiteside. In Kokkonen,
the Supreme Court made clear that a district court can retain
jurisdiction over a case wholly resolved by a stipulation of
dismissal as long as it does so explicitly, even to enforce a
settlement agreement collateral to the underlying litigation.
511 U.S. at 381. In this case, the District Court was actively
considering the case against Whiteside and thus made
manifest its intention to retain jurisdiction. The conduct of
the Court and the parties indicates that all of them shared that
understanding. Indeed, the stipulation of dismissal explicitly
confirmed as much, saying, “Nothing herein shall be
construed in any way to release or otherwise limit the claims
State National has asserted or may assert against Donna
Whiteside arising out of her alleged legal malpractice ... .”
(App. 326.) On these facts, I would conclude that, even if
Kokkonen applied, the District Court acted effectively before
the stipulation of dismissal to assert its continuing jurisdiction
over the claims against Whiteside.
That conclusion is bolstered by our Court’s liberal
standard for evaluating a district court’s retention of
jurisdiction following a settlement agreement. There is not
any magic form of words that the judge must
intone in order to make the retention of
jurisdiction effective. All that is necessary is
that it be possible to infer that he did intend to
retain jurisdiction – that he did not dismiss the
case outright, thereby relinquishing jurisdiction.

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In short, I do not dispute that we have long held that “a
stipulated dismissal under Rule 41 [is] automatic.” (Majority
Op. at 13 (citing First Nat. Bank of Toms River, N.J. v.
Marine City, Inc., 411 F.2d 674, 677 (3d Cir. 1969)).) What I
do dispute is that a stipulation that resolves certain claims
somehow nullifies ongoing litigation of separate claims
against a separate party.
My colleagues’ implicit assumption is that the case
against Whiteside was dormant, awaiting only the completion
of the suit against the County to become final and appealable.
But, in reality, the District Court was actively overseeing
litigation between Whiteside and State National on whether to
allow renewal of the claims against Whiteside, so that the
matter was far from resolved. On September 10, 2014 – over
a month before the stipulation of dismissal – the Court
ordered State National and Whiteside to participate in
settlement discussions before a magistrate judge. Those
discussions took place on September 24. When they failed to
produce a settlement, the Court granted Whiteside’s request
to file a supplemental brief on September 25, and then, on
October 2, ordered Whiteside to file the brief within 30 days.
That brief was filed on October 15, one day after the
stipulation of dismissal. On October 16 – now two days after
the stipulation – the Court issued an order granting State
National’s request to file a response to Whiteside’s brief, and
that response was filed on October 24. All this culminated in

Halderman by Halderman v. Pennhurst State Sch. & Hosp.,
901 F.2d 311, 317 (3d Cir. 1990) (quoting McCall-Bey v.
Franzen, 777 F.2d 1178, 1188 (7th Cir. 1985)).

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the District Court’s December 1, 2014 order denying the
motion for leave to renew the claims against Whiteside.
The ongoing litigation over the Whiteside claims
demonstrates that the case was open and active. In resolving
the motion to reinstate the claims against Whiteside, the
District Court was simply exercising its “jurisdiction over the
original matter,” (Majority Op. at 13), congruent with the
settlement’s terms that “State National intends to maintain its
claims against Donna Whiteside.” (App. 332.) After the
stipulation of dismissal between State National and the
County, the Court both accepted briefing from State National
and Whiteside and issued an order permitting additional
briefing. It quite obviously intended to retain jurisdiction
until it ruled on State National’s motion, and the parties
understood the case against Whiteside to be active and
unaffected by the stipulation.3
The Majority emphasizes that the “District Court’s
actions ... cannot override the application of jurisdictional
rules.” (Majority Op. at 17.) I do not disagree, and I concur
with my colleagues’ readings of Bowles v. Russell, 551 U.S.
205 (2007), and Lizardo v. United States, 619 F.3d 273 (3d
3

The Majority contends, to the contrary, that “the
parties did not make a motion before the District Court for it
to decide on whether the claims against Whiteside should be
reinstated before dismissing the case.” (Majority Op. at 17.)
But that is simply not so. State National filed its motion for
leave to renew its malpractice claims against Whiteside on
April 25, 2014, almost six months before the stipulation of
dismissal.

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Cir. 2010), that a district court’s mistaken consideration of
untimely motions does not excuse the untimeliness. That,
however, merely demonstrates that my colleagues are asking
the wrong question. If the case against Whiteside had
definitively ended in 2010, it would be true that the District
Court’s subsequent actions in 2014 were irrelevant. But the
2010 order dismissing Whiteside was not final; “it was an
interlocutory order that was not immediately appealable.”
(Majority Op. at 10.) Therefore, until the entire case was
made final, the District Court had ongoing inherent authority
to revise its interlocutory order and revive the suit against
Whiteside. The question before us is whether it did so revive
the suit. Its actions and intentions in ordering active litigation
on the claims against Whiteside, and the parties’
understanding of those actions, certainly are relevant to that
determination and prove that the litigation between State
National and Whiteside was revived and active. In fact,
everybody associated with the litigation, except for the two
members of the Majority, understood it that way. Cf. infra
pp. 15-16.
B.

Rule 60(b) Motion Seeking Relief from a
Final Order

The Majority rejects the above reasoning by
concluding that the moment the stipulation of dismissal was
filed, the dismissal of the claims against Whiteside became
final, and all issues among all parties were resolved. It thus
concludes that the time to appeal began to run on that date.
Even if the stipulation of dismissal ended the case as to all
claims against all parties (which it did not), we should still
not dismiss this appeal but should instead treat State
National’s pending motion as a Rule 60(b) motion for post-

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judgment relief.4 That, in turn, would mean that the time to
appeal was tolled until the motion was resolved. See Fed. R.
App. P. 4(a)(4)(A)(vi).
State National’s motion was, in fact, framed in terms
of Rule 60(b)(6), so it is puzzling that the Majority is at such
pains to avoid treating it that way. Since my colleagues are
adamant that the stipulation of dismissal made all
interlocutory orders final, they should be glad to treat the
further litigation as having proceeded under the terms of Rule
60(b). Instead, they insist that the pending motion was
invalid, so that the ongoing litigation before the District Court
was meaningless.
There are, however, two ways that the District Court
could have properly considered State National’s motion as a
Rule 60(b) request for relief from final judgment. First, it
could have treated the 60(b) motion as legitimate even
though, when it was filed, there was no final order in the case.
That approach is, admittedly, in tension with my conclusion
that the motion is better considered under the District Court’s
inherent power to review interlocutory orders. But our Court
has previously considered appeals from denials of Rule 60(b)
motions that concerned interlocutory orders, and we could do
so here if we opted not to analyze the motion as invoking the
District Court’s inherent power. In the alternative, accepting
that the motion was premature when filed, the District Court
4

Rule 60(b) allows a court, on “motion and just
terms,” to “relieve a party or its legal representative from a
final judgment, order, or proceeding ... .” Fed. R. Civ. P.
60(b).

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could properly have treated it as ripening into a Rule 60(b)
motion once the stipulation of dismissal made the underlying
interlocutory order final.
1.

State National’s Motion as an Ongoing
Rule 60(b) Motion

The first avenue – that by which the District Court was
free to consider State National’s motion under Rule 60(b)
from the time the motion was filed – is supported by the
generally flexible treatment our Court has given Rule 60(b)
motions. It is true, as we said in Torres v. Chater, that by its
own terms, Rule 60(b) applies only to “final” judgments,
orders, and proceedings, so that “purely interlocutory” orders
are “not within the scope of Rule 60(b).” 125 F.3d 166, 168
(3d Cir. 1997). But that principle simply governs whether the
strictures of Rule 60(b) apply, not whether a district court can
consider more generally a motion to alter an interlocutory
decision. As the Advisory Committee Notes to Rule 60
explain in describing the finality requirement, “interlocutory
judgments are not brought within the restrictions of the rule,
but rather they are left subject to the complete power of the
court rendering them to afford such relief from them as
justice requires.” Fed. R. Civ. P. 60(b) advisory committee’s
note to 1946 amendment (emphasis added); see also United
States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973) (“[S]o long
as the district court has jurisdiction over the case, it possesses
inherent power over interlocutory orders, and can reconsider
them when it is consonant with justice to do so.”). Because a
motion for relief from an interlocutory order is treated more
liberally than a 60(b) motion, there is no reason to consider
State National’s original motion as a nullity simply because it
was presented under Rule 60(b)(6).

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Our case law makes clear that motions invoking Rule
60(b) should be treated flexibly and functionally. In Torres,
while we said that Rule 60(b) applied only to final orders, we
did so in reaching the conclusion that a Rule 60(b) motion
was not appealable under 28 U.S.C. § 1291 unless it related to
a final order. Torres, 125 F.3d at 168. The point was to
prevent untimely appeals and to direct district courts to
resolve all issues before a party was put to the choice of filing
an appeal. The goal of our opinion in Torres was precisely
contrary to the purposes for which the Majority now cites it.
In fact, rather than insisting that Rule 60(b) motions
are null and void unless in reference to a clearly final order,
Torres suggested just the opposite. We allowed appeal of the
denial of a motion brought under Rule 60(b), even though the
motion was in reference to a seemingly interlocutory order.
We took a functional approach to assessing finality and
determined that, when an otherwise interlocutory order would
“likely escape appellate review, the district court properly
considered that order as final for purposes of Rule 60(b),”
making its “denial of the motion ... final and appealable ... .”
Id. at 169. We thus declined to adopt the rigidly formalistic
interpretation of Rule 60 that today’s Majority relies upon.
We extended Torres’s flexible analysis in a later case,
Penn West Associates, Inc. v. Cohen, to hold that, “even
where an underlying order is purely interlocutory, we may
nonetheless review a district court’s denial of a Rule 60(b)
motion if the denial has the effect of ‘wrap[ping] up all
matters pending on the docket, thus making the decision
final.’” 371 F.3d 118, 123-24 (3d Cir. 2004) (quoting Torres,
125 F.3d at 168). That language from Penn West plainly
authorizes a district court to entertain a premature Rule 60(b)

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motion to review an order that is itself interlocutory – exactly
what the District Court was doing with the order dismissing
the Whiteside claims.5 Accord Kapco Mfg. Co. v. C & O
Enterprises, Inc., 773 F.2d 151, 153 (7th Cir. 1985) (“The
denial of a motion under Rule 60(b) is a final and appealable
order, and this could be so in rare cases even when the
underlying order is interlocutory.” (emphasis added)). Penn
West also teaches that whether a district court’s decision on a
Rule 60(b) motion is itself final or interlocutory depends on a
functional analysis of whether it “wrap[s] up all matters
pending.” 371 F.3d at 124.
If one takes the position that State National’s motion to
reconsider should be addressed as a Rule 60(b) motion, I
would say that Penn West controls and compels us to rule that
State National’s Rule 60(b) motion was proper, thereby
tolling the time to appeal. In Penn West, we considered
whether Rule 60(b) applied to a motion to reopen a case that
had been administratively closed. Id. at 126. We ruled that
an administrative closing was not a final order, so that it was
inappropriate for the district court to consider reopening the
case under the restrictions of Rule 60(b). Rather than treat
5

Whiteside suggests that Federal Rule of Appellate
Procedure 4(a)(4)(A)(vi) cuts against this reading because it
tolls the time to appeal a Rule 60 motion only “if the motion
is filed no later than 28 days after the judgment is entered.”
But, though that language is clear in saying that the motion
must be filed before 28 days have elapsed after final
judgment, it says nothing about whether a motion may toll if
filed before judgment is made final.

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the premature Rule 60(b) motion as null and void, though, we
remanded to the district court to consider the motion under an
equitable analysis without Rule 60(b) restrictions. Id. at 12829.6 Applying those principles to this case, the District Court
could have properly considered the Rule 60(b) motion and
given it more liberal treatment because it was initiated before
the interlocutory order dismissing the claims against
Whiteside was made final.
2.

State National’s Motion as a Ripened
Rule 60(b) Motion When the Underlying
Interlocutory Order Became Final

The Majority provides no reason why the District
Court could not have treated State National’s premature Rule
60(b) motion as having ripened into a true Rule 60(b) motion
after the stipulation of dismissal was filed and the order
6

The Penn West holding also reaffirms that the proper
way to evaluate the appealed motion is as a decision by the
District Court under its inherent powers to reopen an
interlocutory decision. The Majority appears to agree that,
prior to the stipulation of dismissal, that is how the District
Court should have reconsidered its dismissal of Whiteside. It
is odd to say that the strictures of Rule 60(b) suddenly
attached to the Court’s reconsideration in progress merely
because another party was dismissed. It may, therefore, have
been improper for the District Court to rely on Rule
60(b)(6)’s exceptional circumstances requirement in denying
the motion. But that speaks only to the appropriate standard
for the District Court in reconsidering its decision, not to its
ongoing jurisdiction.

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dismissing Whiteside became unambiguously final. As
explained above, Torres and Penn West undermine the
Majority’s determination that a premature Rule 60(b) motion
is thereafter a nullity, since in both those cases we considered
appeals of Rule 60(b) rulings when the underlying order’s
finality was uncertain. Indeed, no one in this case understood
the procedural events in the way that the Majority now does.
State National and Whiteside litigated before the District
Court under the assumption that the motion at issue was valid
under Rule 60(b), and they did so with the active approval
and encouragement of the District Court. It is thus not just
contrary to the Rules and our own precedent for us to declare,
on appeal, that such good-faith litigation amounts only to
“sound and fury, signifying nothing,” William Shakespeare,
MacBeth act 5, sc. 5; it is contrary to the first-hand
understanding of all the participants in the process.
Practical considerations also support an interpretation
of Rule 60(b) that would allow the District Court to
reconsider the dismissal of the claims against Whiteside.
Under the Majority’s reading of the Rule, the District Court
was free to reconsider the Whiteside dismissal under its
inherent powers before State National and the County signed
the stipulation of dismissal, but it was immediately stripped
of all jurisdiction the moment the stipulation was entered.
Such a conclusion effectively abrogates Rule 60(b) in cases in
which there is a Rule 41 stipulation of dismissal. In the
present case, it provides no point at which State National
could have sought Rule 60(b) review of Whiteside’s

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dismissal.7 As my colleagues would have it, State National’s
motion to renew its claims against Whiteside was either a
nullity when filed or was voided with the entry of the
stipulation. Either way, their position suggests that the
District Court lacked jurisdiction to consider a Rule 60(b)
motion concerning Whiteside’s dismissal once the stipulation
with the County was filed. If that were correct, then the
Rules arbitrarily require a plaintiff in such circumstances to
abandon settlement with one defendant in order to give the
district court time to mull over independent claims against
another defendant.

7

My colleagues in the Majority seemingly
acknowledge that they are abolishing Rule 60(b) relief for
parties in State National’s position, because they argue that
the Rule 60 motion was filed both too early and too late. It
was too early for purposes of Rule 60 because it sought to
review a dismissal order that was “interlocutory,” so that a
“Rule 60(b)(6) motion was not a proper avenue by which to
challenge [Whiteside’s] dismissal.” (Majority Op. at 10-11.)
At the same time, the motion was too late for purposes of
Federal Rule of Appellate Procedure 4(a)(4)(A)(vi) because
the “judgment” it sought to review “was entered years
before,” so that the motion did not satisfy the 28-day time
limit for Rule 4 tolling. (Majority Op. at 21.) Therefore, in
the Majority’s reading, State National’s motion was defective
because it asked for relief from a dismissal order that was the
Schrödinger’s cat of procedural rulings – simultaneously too
alive as an interlocutory order for purposes of Federal Rule of
Civil Procedure 60 and too dead as a final judgment for
purposes of Federal Rule of Appellate Procedure 4.

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That is a particularly strange result because Rule 41
dismissals may themselves be reviewed by a district court
under Rule 60(b). We have held that “any time a district
court enters a judgment, even one dismissing a case by
stipulation of the parties, it retains, by virtue of Rule 60(b),
jurisdiction to entertain a later motion to vacate the judgment
on the grounds specified in the rule.” Sawka v. Healtheast,
Inc., 989 F.2d 138, 140 (3d Cir. 1993) (internal quotation
omitted).8 Even if a district court did not retain jurisdiction
over settlement enforcement, we suggested in Sawka that it
could set aside the settlement under “extraordinary
circumstances” under Rule 60(b)(6). Id. at 140; see also
Bryan, 752 F.3d at 321 (“[T]he same ancillary jurisdiction
that supports post-judgment enforcement proceedings
supports proceedings to seek relief from the judgment.”). If
State National could seek Rule 60(b)(6) review of the actual
stipulation of dismissal that supposedly stripped the District
Court of all jurisdiction, it only makes sense that it could seek
the same review of the order dismissing Whiteside, which
became final – and thus appealable – only when the
stipulation of dismissal was entered.
8

In Kokkonen, the Supreme Court considered a circuit
split on the question of when a Rule 60(b) motion may reopen
a case after a stipulation of dismissal. 511 U.S. at 378. The
Court noted that some circuits allow “reopening of the
dismissed suit by reason of breach of the agreement that was
the basis for dismissal,” while other circuits – ours included,
in Sawka – do not treat that as sufficient. Id. The Court
observed that its ruling in Kokkonen did not resolve that
question because reopening a suit is a separate question from
enforcing a settlement. Id.

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A district court’s ability to grant post-judgment relief
in a case like this is especially valuable. The basis of State
National’s motion to renew its claims against Whiteside was
that the District Court’s legal reasoning had shifted over the
course of the litigation in a way that now would allow State
National to assert malpractice claims against Whiteside. If
changes in the District Court’s legal reasoning really did
undermine the final judgment, that is precisely the kind of
error that Rule 60(b) is meant to address, by allowing district
courts to correct and clarify their logic in the first instance
rather than forcing an unnecessary appeal of a muddled final
judgment.9
C.

Federal Rule of Appellate Procedure 4 and
the Purpose of the Appellate Rules

Under the legal theories I have discussed, the clock for
a timely appeal began to run with the District Court’s
December 1, 2014 order denying the motion for leave to
renew the claims against Whiteside. Under the inherent
authority theory, there simply was no final judgment with
regard to Whiteside until December 1, 2014, since the District
Court had reopened the matter by entertaining the motion to
reverse its interlocutory order. If, instead, the motion were to
be treated as a Rule 60(b) motion, it tolled the time to appeal
pending its resolution because it was filed “no later than 28
9

I hasten to add that I am not saying or implying that
State National’s assertions about the District Court’s
reasoning are accurate. Nor am I suggesting that, if we got to
the merits, State National should prevail. I am only saying
that we can and should get to the merits.

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days after the judgment.” Fed. R. App. P. 4(a)(4)(A). In
either case, the December 16, 2014 appeal was “within 30
days after entry of the judgment or order appealed from” and
was therefore timely. Fed. R. App. P. 4(a)(1)(A)(vi).
Both interpretations comport with the purpose of the
Rules to have district courts fully resolve a case before it is
appealed. As the Advisory Committee elaborated when it
clarified Rule 4(a)(4) in 1979, “it would be undesirable to
proceed with the appeal while the district court has before it a
motion the granting of which would vacate or alter the
judgment appealed from.” Fed. R. App. P. 4(a)(4) advisory
committee’s note to 1979 amendment; see also Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56, 58-59 (1982)
(observing one reason for the reform of Rule 4(a)(4) was to
“clarify both the litigants’ timetable and the courts’ respective
jurisdictions,” in service of the principle “that a federal
district court and a federal court of appeals should not attempt
to assert jurisdiction over a case simultaneously.”).
In contrast, the Majority’s holding frustrates the
purpose of the Rules to limit appeals to truly final decisions.
As we explained in Penn West, “a ‘final decision’ for
purposes of appeal” is generally “‘one which ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.’” 371 F.3d at 125 (quoting Catlin
v. United States, 324 U.S. 229, 233 (1945)). “[T]here is no
final order if claims remain unresolved and their resolution is
to occur in the district court.” Aluminum Co. of Am. v. Beazer
East, Inc., 124 F.3d 551, 557 (3d Cir. 1997). The Majority’s
reading of the Rules throws into confusion what constitutes a
final decision in a multi-claim, multi-party case where some
claims are resolved via voluntary dismissal under Federal

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Rule of Civil Procedure 41(a)(1)(A). In the case before us,
the Majority would have forced State National to file an
appeal even as the District Court was actively considering a
motion before it on the claims against Whiteside.
The alternatives I have suggested better comport, I
believe, with the text and purpose of the Rules. Neither
would treat cases disposed of by Rule 41 dramatically
differently from those ended by other means, and both would
give district courts the opportunity to resolve all the matters
before them without encouraging parties to jump the gun with
a premature appeal. Both would facilitate settlement by not
forcing plaintiffs to abandon claims against certain defendants
in order to settle with others. And, in keeping with
Kokkonen, neither would do anything to expand the ancillary
jurisdiction of federal courts.
I share the Majority’s desire that parties be encouraged
to appeal in a timely manner. But I am also concerned with
interrupting our district courts’ complete adjudication of cases
before appeal, and I would not create hyper-technical traps
for prospective appellants. The ordinary course of an
adjudication is to reach final judgment, to resolve any postjudgment motions enumerated in Federal Rule of Appellate
Procedure 4(a)(4)(A), and then for the aggrieved party to
timely appeal. Under the able guidance of the District Court,
that is the course this case took, and I would not strain to read
complexities into the Rules that interrupt that sequence.10
10

If the Majority’s reading of the Rules is indeed
correct, I cannot believe that such a result is what the Rules
Committees of the Judicial Conference intended. I encourage

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Conclusion

This case proceeded before the District Court in model
fashion. The various claims were resolved in sequence; the
parties were given a full opportunity to ventilate their issues;
and, after the last remaining issue was definitively decided by
the District Court, the aggrieved party appealed in short order.
We should not interpret procedural rules to upset that orderly
routine. I therefore respectfully dissent.

the Civil Rules Committee to provide clarification for Federal
Rule of Civil Procedure 41 to assure that Rule 60(b) motions
may still be considered after the entry of a stipulation of
dismissal, and likewise encourage the Appellate Rules
Committee to clarify Federal Rule of Appellate Procedure 4
so that a stipulation of dismissal cannot be seen as overriding
the tolling effects of 4(a)(4)(A) motions.

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