Harrison Orr v. Plumb
FILED OPINION (JOHNNIE B. RAWLINSON, JACQUELINE H. NGUYEN and SARAH S. VANCE) DISMISSED.Opinion by Judge Nguyen; Dissent by Judge Rawlinson. FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLUMB, Officer, California Highway
BRAME, Officer, California
Highway Patrol; STATE OF
CALIFORNIA; CALIFORNIA HIGHWAY
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted August 18, 2017
San Francisco, California
Filed March 12, 2018
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ORR V. PLUMB
Before: Johnnie B. Rawlinson and Jacqueline H. Nguyen,
Circuit Judges, and Sarah S. Vance,* District Judge.
Opinion by Judge Nguyen;
Dissent by Judge Rawlinson
The panel dismissed, for lack of jurisdiction, a
defendant’s appeal from the district court’s judgment on a
jury’s special verdict in a 42 U.S.C. § 1983 action.
The panel held that the appeal was not timely filed under
28 U.S.C. § 2107, Federal Rule of Appellate Procedure 4,
and Federal Rule of Civil Procedure 58. The panel held that
because the district court never entered a separate judgment
pertaining to the jury’s verdict, Rule 58(c)’s alternative
provision for entry of judgment kicked in after 150 days.
The panel determined that the special jury verdict in this case
was a full adjudication of the issues and therefore entry of
the jury special verdict started the 150-day countdown to
November 16, 2015. Defendant then had 30 days to appeal.
He did not file the notice of appeal of the jury special verdict
until 49 days later, on January 4, 2016, rendering the appeal
The Honorable Sarah S. Vance, United States District Judge for
the Eastern District of Louisiana, sitting by designation.
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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ORR V. PLUMB
Dissenting, Judge Rawlinson stated that she disagreed
with the majority’s conclusion that defendant’s appeal of the
jury’s special verdict was untimely. Judge Rawlinson stated
that defendant’s “untimely” appeal was the result of a
procedural morass not of his making, and should not result
in the loss of his right to appeal.
Krista Dunzweiler (argued) and Stephen C. Pass, Deputy
Attorneys General; Peter A. Meshot, Supervising Deputy
Attorney General; Kristin G. Hogue, Senior Assistant
Attorney General; Office of the Attorney General,
Sacramento, California; for Defendant-Appellant.
Michael J. Haddad (argued), Julia Sherwin, and T. Kennedy
Helm, Haddad & Sherwin LLP, Oakland, California;
Richard M. Pearl (argued), Law Offices of Richard M. Pearl,
Berkeley, California; for Plaintiff-Appellee.
Peter J. Eliasberg, ACLU Foundation of Southern
California, Los Angeles, California; Carol A. Sobel, Law
Office of Carol A. Sobel, Santa Monica, California; for
Amici Curiae ACLU of Southern California, ACLU of
Northern California, ACLU of San Diego and Imperial
County, and National Police Accountability Project.
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ORR V. PLUMB
NGUYEN, Circuit Judge:
Terrence Plumb appeals the district court’s judgment on
the jury’s special verdict in this § 1983 case.1 The threshold
issue is whether his appeal is timely under 28 U.S.C. § 2107,
Federal Rule of Appellate Procedure 4 (“Rule 4”), and
Federal Rule of Civil Procedure 58 (“Rule 58”). We
conclude that it isn’t. Because the district court never
entered a separate judgment, Rule 58(c)’s alternative
provision for entry of judgment kicked in after 150 days.
Plumb didn’t file his notice of appeal until more than 30 days
thereafter. Consequently, his appeal of the special verdict is
untimely, and we lack jurisdiction to consider it.
Harrison Orr was driving five miles per hour below the
highway’s posted limit. He was 76 years old, and his license
plates indicated that he had a disability. California Highway
Patrol (“CHP”) officer Jay Brame observed Orr’s vehicle
drift halfway into the next lane. Brame pulled him over,
suspecting that he was driving under the influence of alcohol
or drugs. Although Orr was cooperative and answered
Brame’s questions, his pupils were constricted, his speech
was slurred, and he couldn’t maintain his balance unassisted.
Orr explained that his trouble balancing was due to a
brainstem stroke that he had suffered.
We resolve Plumb’s appeal of the district court’s denial of his
motion for judgment as a matter of law, no. 15-16514, and plaintiff’s
appeal of the partial denial of his motion for attorney’s fees, no.
16-15109, in a concurrently filed memorandum disposition.
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ORR V. PLUMB
A second officer, Plumb, came to assist. A breath test
ruled out alcohol intoxication. Orr agreed to go with the
officers to the station for drug testing but told them he
couldn’t be handcuffed because he needed the use of his
hands and arms for balance and control. Orr passively
resisted being handcuffed by folding his arms across his
chest and twisting his upper torso back and forth. When
Brame wasn’t looking, Plumb punched Orr in the stomach.
Orr fell to the ground, and the officers handcuffed him. At
the station, they determined he wasn’t under the influence of
drugs. Orr was charged with resisting arrest but later
released. The district attorney declined to prosecute Orr due
to insufficient evidence.
Orr sued the two officers and the CHP on various federal
and state law grounds regarding the arrest, the amount of
force used, and defendants’ alleged failure to accommodate
his disability. On June 17, 2015, the jury returned a special
verdict that was entirely favorable to Brame and the CHP.
But the jury found that Plumb used excessive force in
arresting Orr and awarded $125,000 in damages. The same
day, the clerk entered the special verdict into the docket
along with a minute order stating, “verdict returned, read and
filed in favor of plaintiff.”
The following week, Plumb moved for judgment as a
matter of law (“JMOL”) under Federal Rule of Civil
Procedure 50(b). The district court denied the motion in a
July 8, 2015 order. Plumb filed a notice of appeal later that
month. The notice specified that he was appealing the
JMOL ruling and gave no indication that he intended to
appeal anything else.
In August 2015, Orr moved for attorneys’ fees. In
December, while the fee motion was under submission,
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ORR V. PLUMB
Plumb submitted his opening brief in the appeal of the JMOL
order. Like the notice of appeal, the opening brief contained
no hint that Plumb planned to appeal anything else. In fact,
Plumb stated that the JMOL order “was the district court’s
final one on the issues of [his] liability.” On December 22,
2015, the district court partially granted Orr’s request for
Plumb filed a second notice of appeal on January 4,
2016, stating that the appeal was “from Judgment based on
the Special Verdict.” He asserted that the judgment “was
entered as a matter of law pursuant to [Rule] 58(c)(2)(B) 150
days after the [JMOL order].” Orr appealed the order
regarding attorneys’ fees on January 18, 2016.
On February 1, 2016, the district clerk signed and
entered a document captioned “Judgment in a Civil Case.”
The clerk’s judgment ordered “that judgment is hereby
entered in accordance with the jury verdict rendered
After the briefing in Plumb’s appeal of the JMOL order
was complete, we consolidated the three appeals. The
parties then submitted a second round of briefing addressing
this appeal and Orr’s appeal of the fee order.
Unless the district court extends the deadline within the
prescribed time, “the timely filing of a notice of appeal in a
civil case is a jurisdictional requirement.” Bowles v. Russell,
551 U.S. 205, 214 (2007)); see Hamer v. Neighborhood
Hous. Servs. of Chicago, 138 S. Ct. 13, 21 (2017). Whether
a notice of appeal is timely filed depends on when the order
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ORR V. PLUMB
or judgment appealed from is entered. A notice of appeal
generally must be filed “within thirty days after the entry.”
28 U.S.C. § 2107(a); accord Fed. R. App. P. 4(a)(1)(A).
Rule 58 sets forth the framework for determining when
and how an appealable order or judgment is entered. Since
its adoption in 1938, the rule has been consistent in two
respects. It requires prompt entry of judgment,2 and it
distinguishes between the “uncomplicated” judgments that
are normally issued by the clerk without further direction
from the court and the more complex ones that require the
court’s involvement. See Fed. R. Civ. P. 58, advisory
committee’s note to 1963 amendment. In particular,
judgments on general jury verdicts may be entered by the
clerk without the court’s direction, but the court must
“approve the form of the judgment” on a jury special verdict.
Fed. R. Civ. P. 58(b).
Notwithstanding this consistency, Rule 58 has
undergone two significant changes. In 1963 it was amended
to require that every judgment “be set forth on a separate
document.”3 Fed. R. Civ. P. 58(a). The “sole purpose” of
The current version of Rule 58 requires both court and clerk to act
Originally, the rule stated that the judge should
“promptly . . . approve the form of the judgment,” if required, and the
clerk should in all cases enter the judgment “forthwith.” Fed. R. Civ. P.
58 (1938). To give a sense of what the rule meant by “promptly” and
“forthwith,” the original Advisory Committee Notes reference the time
periods established in various states, which ranged from 24 hours (Idaho
and Montana) to one week (Connecticut).
The 1963 amendment largely prohibited attorneys from submitting
the separate documents. See Fed. R. Civ. P. 58 (1963) (“Attorneys shall
not submit forms of judgment except upon direction of the court, and
these directions shall not be given as a matter of course.”). This
prohibition was “to avoid the delays that were frequently encountered by
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ORR V. PLUMB
requiring a separate document for the court’s judgment “was
to clarify when the time for appeal . . . begins to run.”
Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007)
(omission in Whitaker) (quoting Bankers Tr. Co. v. Mallis,
435 U.S. 381, 384 (1978) (per curiam)). Prior to this
amendment, parties frequently had difficulty ascertaining
whether a court’s ruling contained all of the elements of a
judgment and thus whether it started the time limits for posttrial motions and appeals. See Fed. R. Civ. P. 58, advisory
committee’s note to 1963 amendment. The confusion could
have harsh consequences, particularly with the rule then in
effect that a premature notice of appeal was ineffectual if
certain post-decision motions were also filed. See Fed. R.
Civ. P. 73(a) (1946); Otis v. City of Chicago, 29 F.3d 1159,
1166 (7th Cir. 1994) (en banc) (discussing the “trap that
caused appeals filed before the disposition of a motion for
reconsideration to self-destruct and thereby cost many
parties, who were not keenly aware of the niceties of
appellate practice, any opportunity for review”).4
The use of a separate document to signify that a
judgment was ripe for appeal, while largely eliminating
the former practice of directing the attorneys for the prevailing party to
prepare a form of judgment, and also to avoid the occasionally inept
drafting that resulted from attorney-prepared judgments.” Fed. R. Civ.
P. 58, advisory committee’s note to 2002 amendment. It was replaced
by Rule 58(d), which “allow[s] any party to move for entry of judgment
on a separate document” and was designed to “protect all needs for
prompt commencement of the periods for motions, appeals, and
execution or other enforcement.” Id.
This trap was eliminated in the 1979 and 1993 amendments to Rule
4, the “theme” of which “is that decisions may become final and
appealable after their announcement or entry, and that to preserve the
right of appellate review courts should permit parties to appeal either
before or after the technical date of ‘finality.’” Otis, 29 F.3d at 1166.
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uncertainty, created its own set of problems. Courts often
neglected to enter judgment on a separate document, with
the result that the time to appeal never began to run. To
address the “many and horridly confused problems” created
by these lapses, Rule 58 was amended in 2002 “to ensure
that appeal time does not linger on indefinitely.” Fed. R.
Civ. P. 58, advisory committee’s note to 2002 amendment.
Currently, for purposes of appeal and post-decision
motion deadlines, final judgments are entered “the earlier
of” the date that the decision is set out in a separate document
and 150 days after it is entered in the docket. Fed. R. Civ. P.
58(c)(2). In other words, if both “court and clerk fail to
comply with [the] simple requirement” of entering final
judgment on a separate document, then judgment is
constructively entered on the 150th day. Fed. R. Civ. P. 58,
advisory committee’s note to 2002 amendment. For orders
resolving certain separately appealable post-decision
motions, including JMOL motions under Federal Rule of
Civil Procedure 50(b), no separate document is required;
“judgment” on these orders occurs when they are entered in
the docket. Fed. R. Civ. P. 58(a), (c)(1).
The term “judgment” is defined broadly to include “any
order from which an appeal lies.” Fed. R. Civ. P. 54(a). In
other words, it is a final order or decision. E.g., Bankers Tr.
Co., 435 U.S. at 384 n.2; United States v. Martin, 226 F.3d
1042, 1048 (9th Cir. 2000). In determining whether a
disposition is final, we employ “‘a practical rather than a
technical’ analysis.” Bishop Paiute Tribe v. Inyo County,
863 F.3d 1144, 1151 n.2 (9th Cir. 2017) (quoting Gillespie
v. U.S. Steel Corp., 379 U.S. 148, 152 (1964)); see Rule 58,
advisory committee’s note to 2002 amendment (“The . . .
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ORR V. PLUMB
definition of the entry of judgment must be applied with
common sense . . . .”).
A jury verdict is not directly appealable because a
separate document is required—with the court’s approval in
the case of a special verdict—in order to constitute a formal
judgment. Fed. R. Civ. P. 58(a), (b)(2)(A); see In re RhonePoulenc Rorer, Inc., 51 F.3d 1293, 1297 (7th Cir. 1995)
(“[A] verdict as such is not an appealable order.”). However,
a verdict is “final,” and eventually appealable after actual or
constructive judgment is entered, if it “ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment.” Klestadt & Winters, LLP v. Cangelosi, 672
F.3d 809, 813 (9th Cir. 2012) (quoting Catlin v. United
States, 324 U.S. 229, 233 (1945)); cf. Casey v. Long Island
R.R., 406 F.3d 142, 147–48 (2d Cir. 2005) (assuming that
after the 2002 amendments to Rule 58, a jury special verdict
would trigger the 150-day alternative date for entry of
The special verdict here was “a full adjudication of the
issues.” Van Dusen v. Swift Transp. Co., 830 F.3d 893, 896
(9th Cir. 2016) (quoting Nat’l Distrib. Agency v. Nationwide
Mut. Ins., 117 F.3d 432, 433 (9th Cir. 1997)). It established
that Plumb is liable to Orr for $125,000 and the other
defendants are not liable. There was nothing further for the
court to do other than enter a separate judgment
memorializing the jury’s findings. That the special verdict
left nothing to be decided is evident both from Plumb’s
decision to appeal it before a separate judgment was entered,
and from the clerk’s judgment, which purported to enter
judgment “in accordance with the jury verdict” without
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ORR V. PLUMB
Therefore, entry of the jury special verdict started the
150-day countdown to November 16, 2015,5 when an
appealable judgment on the jury special verdict was
constructively entered due to the district court’s inaction. By
allowing the jury special verdict to stand without modifying
or vacating it prior to the constructive entry of judgment, the
district judge “clearly evidence[d] [his] intention that it be
the court’s final act in the matter.” Van Dusen, 830 F.3d at
896 (quoting Nat’l Distrib. Agency, 117 F.3d at 433). Plumb
then had 30 days to appeal. He did not file the notice of
appeal of the jury special verdict until 49 days later, on
January 4, 2016, rendering the appeal untimely.
Plumb argues that the special verdict’s entry in the
docket couldn’t have triggered the 150-day period
culminating in the entry of judgment because the district
court didn’t approve its form and the clerk didn’t enter it on
a separate document as required by Rule 58(b)(2). Rule
58(b) describes how the separate judgment must be prepared
and entered, but only if one is necessary. Rule 58(c) clarifies
that entry of a separate judgment, even if required under
Rule 58(a), is not necessary to start the time to appeal, which
occurs automatically after 150 days.6 In adopting the 2002
The 150th day fell on a Saturday. Judgment on the special verdict
was constructively entered on the following Monday pursuant to Federal
Rule of Civil Procedure 6.
In relevant part, Rule 58 provides:
(a) Separate Document.
Every judgment and
amended judgment must be set out in a separate
document, but a separate document is not required
for an order disposing of a motion:
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ORR V. PLUMB
(1) for judgment under Rule 50(b);
(2) to amend or make additional findings under
(3) for attorney’s fees under Rule 54;
(4) for a new trial, or to alter or amend the
judgment, under Rule 59; or
(5) for relief under Rule 60.
(b) Entering Judgment.
(1) Without the Court’s Direction. Subject to
Rule 54(b) and unless the court orders
otherwise, the clerk must, without awaiting
the court’s direction, promptly prepare, sign,
and enter the judgment when:
(A) the jury returns a general verdict;
(B) the court awards only costs or a sum
(C) the court denies all relief.
(2) Court’s Approval Required. Subject to Rule
54(b), the court must promptly approve the
form of the judgment, which the clerk must
promptly enter, when:
(A) the jury returns a special verdict or a
general verdict with answers to written
(B) the court grants other relief not described
in this subdivision (b).
(c) Time of Entry. For purposes of these rules,
judgment is entered at the following times:
(1) if a separate document is not required, when
the judgment is entered in the civil docket
under Rule 79(a); or
(2) if a separate document is required, when the
judgment is entered in the civil docket under
Rule 79(a) and the earlier of these events
(A) it is set out in a separate document; or
(B) 150 days have run from the entry in the
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amendments, Congress “decided that ensuring finality
eventually becomes more important than strictly enforcing
Rule 58’s separate document requirement.” Harmston v.
City & County of San Francisco, 627 F.3d 1273, 1280 (9th
The Fifth Circuit has characterized Plumb’s argument
“as diametrically contrary to the text, purpose and design of
the integrated system established by [Federal Rules of Civil
Procedure] 58 and 79 and [Federal Rule of Appellate
Procedure] 4.” Burnley v. City of San Antonio, 470 F.3d 189,
196 (5th Cir. 2006).7 We agree. As Burnley observed, such
a reading of Rule 58(b) “would render the 150-day cap
required by [Rule 58(c)] meaningless and defeat the purpose
of the 2002 amendments.” Id. Under Rule 58(c)(2)(B), “the
cap only begins to run upon the clerk’s entry of judgment in
the civil docket; if the clerk cannot make a valid entry of
judgment when the Court defaults on its duty, as [Plumb]
contends, the cap could never begin to run in the very cases
in which it was intended to apply.” Id.
Plumb suggests two alternative dates as having triggered
the time to appeal the jury special verdict. First, he asserts
that the district court’s order denying his JMOL motion was
“the only ‘judgment’ for purposes of Rule 58 that could start
the 150 day period running under . . . Rule 58(c)(2).” Under
this theory, the 150-day period ran from entry of the JMOL
order and ended on December 7, 2015; Plumb’s notice of
appeal, filed less than 30 days later, was timely.
Burnley involved a general verdict accompanied by
interrogatories, which is treated the same as a special verdict. See Fed.
R. Civ. P. 58(b)(2)(A).
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Plumb’s theory fails to account for Rule 4(a)(4) and Rule
58(a)(1) and (c)(1). Rule 4(a)(4)(A) pertains to six postdecision motions, including one for JMOL under Rule 50(b).
Fed. R. App. P. 4(a)(4)(A)(i). It provides that if a party
timely files one of these motions, then “the time to file an
appeal runs . . . from the entry of the order disposing of the
last such remaining motion.” Id. R. 4(a)(4)(A). Rule 58 is
in accord. It provides that “an order disposing of a motion”
for JMOL under Rule 50(b) does not require a separate
document setting out the judgment, Fed. R. Civ. P. 58(a)(1),
and judgment on the JMOL order therefore occurs “when the
judgment [i.e., the order] is entered in the civil docket.” Id.
R. 58(c)(1). There is no basis for imputing entry of an
unnecessary separate judgment 150 days after entry of the
JMOL order. Moreover, Plumb’s theory conflicts with our
previous holding that when the district court rules on a Rule
50(b) motion before entering final judgment in the case, the
time to appeal runs from the entry of final judgment. See
ABF Capital Corp. v. Osley, 414 F.3d 1061, 1064–65 (9th
Plumb also suggests that the clerk’s judgment entered on
February 1, 2016, started his time to appeal. There are
several problems with this theory. To begin with, “[t]he
rules plainly provide that judgment is entered when it is set
forth on a separate document or when 150 days have run,
whichever is earlier.” Stephanie-Cardona LLC v. Smith’s
Food & Drug Ctrs., Inc., 476 F.3d 701, 704 (9th Cir. 2007).
“Because more than 150 days passed before the [clerk], for
whatever reason, issued a judgment on a separate document,
the 30 days in which to file a notice of appeal had been
running from November [16, 2015], the end of the 150-day
period.” Id. “[I]f, after filing a final disposition, a court files
a more formal judgment, the latter does not constitute a
second final disposition or extend the appeal period.” S.L.
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ex rel. Loof v. Upland Unified Sch. Dist., 747 F.3d 1155,
1161 (9th Cir. 2014) (quoting In re Slimick, 928 F.2d 304,
307 (9th Cir. 1990)).
Moreover, by filing the notice of appeal before the clerk
entered judgment in a separate document, Plumb waived any
reliance on it. “A failure to set forth a judgment or order on
a separate document when required by Federal Rule of Civil
Procedure 58(a) does not affect the validity of an appeal
from that judgment or order.” Fed. R. App. P. 4(a)(7)(B).
Consequently, “when the parties treat a fully dispositive
summary judgment order as if it were a final judgment, the
requirement in Federal Rule of Civil Procedure 58 that the
judgment ‘be set forth on a separate document’ can be
waived.” Whitaker, 486 F.3d at 579–80 (quoting Casey v.
Albertson’s Inc., 362 F.3d 1254, 1256 (9th Cir. 2004)); see
Bankers Tr. Co., 435 U.S. at 384–88.
Even if, for the sake of argument, we accept Plumb’s
position that compliance with Rule 58(b)(2) was necessary,
the clerk’s verdict did not meet that standard because the
district court was required to “approve the form of the
judgment.” Fed. R. Civ. P. 58(b)(2). That means, at a
minimum, that the district judge must sign the judgment. See
Steccone v. Morse-Starrett Prods. Co., 191 F.2d 197, 200
(9th Cir. 1951); see also Levin v. Wear-Ever Aluminum, Inc.,
427 F.2d 847, 849 (3d Cir. 1970) (concluding that separate
judgment on jury special verdict must be “prepared and
signed” to comply with Rule 58); cf. United States v. F. &
M. Schaefer Brewing Co., 356 U.S. 227, 235–36 (1958)
(construing judge’s “signing and filing the formal
‘judgment’” as evidence of judge’s intent that it “constitute
his final judgment in the case”).
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Plumb is not, as he claims, being “penalized . . . because
the district court created uncertainty.” He could have
“request[ed] that judgment be set out in a separate document
as required by Rule 58(a).” Fed. R. Civ. P. 58(d). There’s
no penalty for filing a premature notice of appeal. See Fed.
R. App. P. 4(a)(2). “[I]f the judge does nothing further in
the case for 150 days, then it should occur to even the most
inattentive of appellate counsel that it is time either to seek
clarification from the judge or to file an appeal.” 16A
Charles Alan Wright et al., Federal Practice & Procedure
§ 3950.2 (4th ed. 2017).
Pointing to the fact that “the appeals are now
consolidated,” Plumb asserts that “as a practical matter” he
is “not in violation of the single appeal rule.” Under the final
judgment rule, “a party must ordinarily raise all claims of
error in a single appeal following final judgment on the
merits.” Flanagan v. United States, 465 U.S. 259, 263
(1984) (quoting Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 373 (1981)). That rule is not violated when a party
appeals the final judgment in the case, which encompasses
all of the interlocutory orders that preceded it, and separately
appeals an appealable post-decision order. See Fed. R. App.
P. 4(a)(4)(B)(ii) (“A party intending to challenge an order
disposing of any motion listed in Rule 4(a)(4)(A) . . . must
file a notice of appeal, or an amended notice of
appeal . . . .”).
But our consolidation of the three appeals in this case for
administrative convenience makes no difference to the
timeliness inquiry. Timeliness is evaluated for each appeal
when the notice of appeal is filed. We may consolidate
appeals for a decision on the merits only if each of the
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separate notices of appeal is timely and the appeals are
subject to our jurisdiction. See Fed. R. App. P. 3(b)(2);
United States v. Washington, 573 F.2d 1121, 1123 (9th Cir.
1978). Our consolidation order denied Orr’s motion to
dismiss this appeal “without prejudice to renewing the
arguments in the answering brief.” We thus deferred
consideration of the jurisdictional question.
To the extent we have discretion to treat the arguments
in this untimely appeal of the jury verdict as part of Plumb’s
timely appeal of the JMOL order, we decline to do so. A
notice of appeal must “designate the judgment, order, or part
thereof being appealed.” Fed. R. App. P. 3(c). Plumb’s
timely notice of appeal indicated that he was appealing only
the denial of his JMOL motion.
Although “a mistake in designating the judgment
appealed from should not result in loss of the appeal as long
as the intent to appeal from a specific judgment can be fairly
inferred from the notice and the appellee is not misled by the
mistake,” El-Shaddai v. Zamora, 833 F.3d 1036, 1041 n.1
(9th Cir. 2016) (quoting Munoz v. Small Bus. Admin., 644
F.2d 1361, 1364 (9th Cir. 1981)), that was not the case here.
In Plumb’s timely appeal, he affirmatively represented in his
reply brief that he was “not appealing the propriety of the
jury instructions at this time.” Plumb first challenged the
jury instructions in this appeal. His other contention in this
appeal, that he was denied a fair trial due to allegedly biased
statements by the district court, was not raised below. Orr
had no notice of the issue while briefing Plumb’s timely
The usual rule is that arguments raised for the first time
on appeal or omitted from the opening brief are deemed
forfeited. E.g., Butler v. Curry, 528 F.3d 624, 642 (9th Cir.
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ORR V. PLUMB
2008). There is no reason to depart from that rule here,
which would in effect waive a jurisdictional bar.
Judgment on the special verdict was constructively
entered 150 days after the special verdict was entered on the
docket. Because Plumb appealed the judgment on the
special verdict more than 30 days after its entry, his appeal
is untimely. Therefore, we lack jurisdiction to reach its
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from my colleagues’ conclusion
that Plumb’s appeal of the jury’s special verdict was
untimely. Unfortunately, Plumb’s “untimely” appeal was
the result of a procedural morass not of Plumb’s making, and
should not result in the loss of his right to appeal.
A chronology of the pertinent proceedings provides
context for my analysis. On July 8, 2015, the district court
denied Plumb’s motion filed pursuant to Rule 50(b) of the
Federal Rules of Civil Procedure. On July 27, 2015, Plumb
filed a notice of appeal from the district court’s denial of his
Rule 50(b) motion. On December 22, 2015, the district court
entered its order awarding Orr attorneys’ fees and costs. On
January 4, 2016, Plum filed a notice of appeal of the jury’s
special verdict. Almost thirty days subsequent to the filing
of Plumb’s notice of appeal, the district court belatedly
entered final judgment “in accordance with the [special] jury
verdict rendered 6/17/2015.”
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ORR V. PLUMB
Pursuant to Rule 58 of the Federal Rules of Civil
Every judgment and amended judgment must
be set out in a separate document, but a
separate document is not required for an
order disposing of a motion . . . for judgment
under Rule 50(b) . . .
Fed. R. Civ. P. 58(a)(1). Consequently, the court was not
required to separately enter judgment for its order denying
Plumb’s motion filed pursuant to Rule 50(b). However, the
same is not true as to the special verdict. Addressing that
“form of judgment,” Rule 58 provides in pertinent part:
[T]he court must promptly approve the form
of the judgment, which the clerk must
promptly enter, when . . . (A) the jury returns
a special verdict with answers to written
questions . . .
Fed. R. Civ. P. 58(b)(2) (emphases added).
This provision is in stark contrast to Rule 58(b)(1), which
provides in relevant part:
[T]he clerk must, without awaiting the
court’s direction, promptly prepare, sign, and
enter the judgment when . . . (A) the jury
returns a general verdict . . .
Fed. R. Civ. P. 58(b)(1) (emphasis added).
Thus, the federal rules direct the clerk to promptly enter
judgment without any action on the part of the court if a
general verdict is rendered. See Fed. R. Civ. P. 58(b)(1). In
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ORR V. PLUMB
contrast, if a special verdict is rendered, the clerk may enter
“the form of judgment” only after approval by the court.
Fed. R. Civ. P. 58(b)(2). The heading for Rule 58(b)(2) says
it all: “Court’s Approval Required.” Fed. R. Civ. P.
It is undisputed that a special verdict was rendered in this
case on June 17, 2015. It is also undisputed that the district
court failed to promptly approve the special verdict form,
belatedly approving the special verdict form on February 1,
2016, after Padgett filed two notices of appeal, including one
challenging the special verdict.1
Although Padgett’s notice of appeal was filed prior to the
district court’s approval of the special verdict, the majority
nevertheless concludes that Padgett’s appeal was untimely.
See Majority Opinion, p. 15. To reach this result, the
majority maintains that judgment on the jury special verdict
was “constructively entered.” Majority Opinion, p. 11
(emphasis added). However, the rule governing special
verdicts makes no allowance for the “constructive” entry of
Rather, the rule imposes an affirmative
requirement on the judge to approve the special verdict
before it is filed. See Fed. R. Civ. P. 58(b)(2).
Interestingly, the majority seeks to subtly shift the blame
to Plumb by suggesting that he could have “requested that
judgment be set out in a separate document.” Majority
Opinion, p. 16 (quoting Fed. R. Civ. P. 58(d)). There are
two problems with the majority’s suggestion: 1) compliance
This interpretation of the facts gives the district court the benefit of
the doubt. If, as the majority notes, the district court judge was required
to sign the judgment, Rule 58(b)(2) is yet unsatisfied. See Majority
Opinion, p. 15.
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ORR V. PLUMB
with Rule 58(d) does not eliminate the court’s failure to
comply with Rule 58(b)(2), and 2) it should not be the
responsibility of a party to remind the court to adhere to the
The majority’s reliance on the Fifth Circuit’s opinion in
Burnley v. City of San Antonio, 470 F.3d 189 (5th Cir. 2006)
is misplaced in my view. In its analysis, the Fifth Circuit
completely ignored the language of Federal Rule of Civil
Procedure 58(b)(2), which explicitly references a special
verdict and relied instead on the language of Rule 58(b)(1),
which addresses only general verdicts. See id. at 195. This
faulty analysis is singularly unpersuasive and encourages
noncompliance with the procedural rules. In the twelve
years since this case was decided, no other circuit has
adopted this wayward analysis of Rule 58, which completely
reads Rule 58(b)(2) out of the procedural rules.
Because the district court failed to approve the special
verdict form before Plumb filed his notice of appeal, the
appeal was timely.2 We should decide Plumb’s appeal of the
special verdict on the merits.
As the majority noted, “[t]here’s no penalty for filing a
premature notice of appeal.” Majority Opinion, p. 16.
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