Napier v. United States of America

Filing 75

MEMORANDUM, DECISION GRANTING United States' Motion for Reconsideration 272 , signed by Judge Oliver W. Wanger on 8/5/2011. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS NAPIER,
Petitioner,

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1:10-cv-00040 OWW GSA

v.

MEMORANDUM DECISION GRANTING
UNITED STATES’ MOTION FOR
RECONSIDERATION (DOC. 72).

UNITED STATES OF AMERICA,
Respondent.

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A June 22, 2011 memorandum decision denied Petitioner
Dennis Napier’s motion for new trial and amendment of
judgment, and denied the United States’ cross-motion to
set a hearing date on its motion for destruction of
property.

Doc. 71.

In denying the United States’ cross-

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motion, the district court concluded that an order filed

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March 24, 2011 was not a separate document within the

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meaning of Federal Rule of Civil Procedure 58, and

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therefore, Petitioner’s time to appeal had yet to expire.

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Id. at 7-8.

The district court reasoned:

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In a civil case, a notice of appeal must
normally be filed “within 30 days after the
judgment or order appealed from is entered.”
Fed. R. App. P. 4(a). The “order” denying
Petitioner’s motion for return of property was
entered March 24, 2011. Doc. 64. However,
whether that order was “entered” for purposes of
the Appellate Rules is a different question.
Appellate Rule 4 provides that whenever Federal
Rule of Civil Procedure 58(a) requires the
“judgment or order” to be set forth in a
“separate document,” the order is not considered
“entered” until “set forth on a separate
document” or “150 days have run from entry of
the judgment or order in the civil docket.”
Rule 58(a) requires a separate document for all
orders disposing of motions, with the exception
of certain types of motions not relevant here.
As a rule of thumb, a “separate document” should
not set forth the court’s reasoning or apply law
to the facts. See Paddack v. Morris, 783 F.2d
844, 846 (9th Cir. 1986). Here, although the
order is short, it offers an “additional reason
for adopting the Magistrate Judge’s findings”
not set forth in any previous document. This
does not constitute a “separate document.”
Accordingly, the order was never “entered” for
purposes of Appellate Rule 4. Petitioner has
180 days (150 plus 30) from March 24, 2011 to
file his notice of appeal with the Ninth Circuit
Court of Appeals.

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Id.
The United States now moves for reconsideration of
this ruling.

Doc. 72.

reconsideration.

Mr. Napier opposes

Doc. 73.

The United States relies on

In re Schimmels, 85 F.3d 416 (9th Cir. 1996), to argue

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that the March 24, 2011 order did satisfy the separate

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judgment rule.

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as follows:

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Schimmels set forth the general standard

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The separate judgment rule does not always
require the filing of two separate documents. As
[In re Slimick, 928 F.3d 304 (9th Cir. 1990)]
made clear, when a court enters a short order
that clearly constitutes a final decision, that
short order meets the separate judgment rule.
Similarly, if a court grants a summary judgment
without writing an opinion or memorandum, then
the order granting summary judgment is enough to
meet the separate document requirement.
[The separate judgment rule] does require
every judgment to be set forth on a separate
document. Appellant, however interprets this
to mean that two documents are required in
all cases. This is unfounded. [The separate
judgment rule] applies where it is uncertain
whether a final judgment has been entered,
as where a trial judge writes an opinion or
memorandum providing only the basis for the
entry of judgment, but containing apparently
directive or dispositive words such as
“defendant's motion for summary judgment is
granted.” In such a situation, a judgment
must be set out on a document separate from
the opinion or memorandum.
[citations].
Schimmels, 84 F.3d at 421.
In Schimmels, the bankruptcy court entered an order
entitled “Order Granting Summary Judgment,” which read,
in its entirety:
The matter of Debtor's Motion for Summary
Judgment on the First Amended Complaint to
Determine Dischargeability filed by the
[appellants] having come for hearing on December
2, 1993, Debtors appearing with their counsel,
Alan R. Smith, Esq., and the [appellants]
appearing through their counsel, John R. Martz,
Esq., and it appearing that the [appellants]
failed to timely respond to the subject Motion,
said failure not being attributable to excusable
neglect, and the Court having considered the
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tardy motion for extension of time filed by the
[appellants] and denying the same, and the Court
having considered the preliminary response filed
by the [appellants] without supporting
affidavits, and the Court having considered the
arguments of counsel, it is therefore

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ORDERED that summary judgment is granted in
favor of the Debtors and against the
[appellants] on each of the nine causes of
action as set forth in the First Amended
Complaint to Determine Dischargeability filed by
the [appellants].

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Id.

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document entering judgment.

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motion for reconsideration, the bankruptcy court entered

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This order was not followed by an additional
In response to a subsequent

an order entitled “Order Denying Motion for
Reconsideration of Order Granting Debtor's Motion for
Summary Judgment,” which read, in its entirety:
The Court having considered the [appellants']
Motion for Reconsideration of the Court's Order
dated January 4, 1994 granting Debtor's Motion
for Summary Judgment on the [appellants'] First
Amended Complaint to determine dischargeability,
the Debtors' opposition thereto, and the Court
having heard the arguments of counsel at a
hearing on February 23, 1994,
IT IS HEREBY ORDERED that the [appellants']
Motion for Reconsideration of the Order dated
January 4, 1994 granting debtors' motion for
summary judgment is DENIED.
Id. at 421-22.

Again the bankruptcy court did not docket

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an additional document entering judgment.

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Appellants filed their notice of appeal one day late and

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subsequently argued the second order did start the time

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Id. at 422.

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for filing a notice of appeal because the bankruptcy

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court never entered separate judgments as required under

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Bankruptcy Rule 9021.

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Id.

The Ninth Circuit held that two separate documents
are not always required.

Where the lower court files an

extensive opinion explaining its disposition, a separate

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order is required.

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without the filing of an opinion, such as was the case in

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Schimmels, no separate document is required.

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fact that the order contains a single sentence detailing

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However, where an order is entered

“The mere

the history of the proceedings does not disqualify it as
a separate order.”

Id.

As to the first order in

Schimmels, the Ninth Circuit emphasized that it was

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“clearly intended as the final disposition of the case,

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stating: ‘[I]t is therefore ORDERED that summary judgment

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is granted....’”

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appellants would be misled.”

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on the motion to reconsider, the Ninth Circuit emphasized

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Id.

“There was no possibility that
Id.

As to the second order

that the “order contains only a one-sentence recitation
of the procedure, documents, and arguments considered by
the court in denying the motion.

There is no explanation

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of the reasoning of the court.

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disposes of the motion for reconsideration.

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possibility that the appellants would be misled into

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The order clearly
There was no

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believing that this was not a final order from which the

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time for appeal would run.”

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Id.

Here, the March 24, 2011 ruling included a single
sentence explaining one additional reason for adopting
the Magistrate Judges findings and recommendations neverbefore articulated in writing:
THE COURT FURTHER finds that as an additional
reason for adopting the Magistrate Judge’s
findings is that on March 29, 2010, Fresno
County Superior Court Judge Gary Orozco found
that Mr. Napier remained convicted of two felony
violations of California Penal Code Section
245(a)(1).
Doc. 64 at 2.
The inclusion of this additional reason formed the
basis of the district court’s prior decision that the

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March 24, 2011 order did not satisfy the separate order

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requirement.

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(9th Cir. 1986) (As a rule of thumb, a “separate

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document” should not set forth the court’s reasoning or

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apply law to the facts).

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See Paddack v. Morris, 783 F.2d 844, 846

Schimmels suggests that a more

nuanced analysis is required.

The key is whether it is

“uncertain whether a final judgment has been entered,”
Schimmels, 85 F.3d at 421.

Schimmels offers the example

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of “where a trial judge writes an opinion or memorandum

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providing only the basis for the entry of judgment, but

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containing apparently directive or dispositive words such

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as ‘defendant's motion for summary judgment is granted.’”

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Id.

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In such a case, a separate order is required.
Here, however, the transcript of the hearing that led

to entry the March 24, 2011 order reveals that the “new”
reason included in the March 24, 2011 order was discussed
and included in the district court’s oral statement of

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decision adopting the magistrate’s findings and

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recommendations.

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(discussing Judge Orozco’s order).

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addition to requesting counsel for the United States to

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See 2/28/11 Hrg. Tr. at 7, 14-17
Moreover, in

prepare a written order reflecting the oral ruling, the
district court made it absolutely clear that entry of the
order would start to run the time to file an appeal:
THE COURT: But if you don't, Mr. Napier, file a
notice of appeal now within 30 days and protect
your rights, you are going to lose your rights.
Do you understand?
MR. NAPIER: I thought some cases were 60 days.
THE COURT: You are not the government. And so I
can't advise you as to what the law is. You need
to look at the Federal Rules of Appellate
Procedure.
And all I'm telling you is if you want to have
my ruling reviewed, you need to appeal it to the
Court of Appeal.

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Do you understand that?

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MR. NAPIER: Yes.

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Id. at 20.

In light of Schimmels, the combination of the
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court’s oral ruling and the warning given to Petitioner

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regarding the filing of an appeal, the subsequent March

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24, 2011 satisfies the separate judgment requirement.

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The time for appeal has passed.
In his opposition, Mr. Napier indicates that he
“believed he had 60 days to appeal since the United

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States was a party.”

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Napier’s mistaken belief that the 60-day appeal period

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applied to him was brought up at the February 28, 2011

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hearing, at which time the district court drew attention

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Doc. 73 at 4.

As quoted above, Mr.

to Mr. Napier’s error by explaining that the extended
appeal period applies only to appeals filed by the United
States.

In any event, the 60-day window has long since

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passed.

It also is notable that Mr. Napier indicates in

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his opposition that he has yet to pursue any remedies in

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state court because he claims that his appointed Federal

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Defender warned “that he was just putting the noose

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around his neck by going to the State Court referring to

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Judge Orozco’s order.”

Doc. 73 at 5.

The United States’ motion for reconsideration of the
June 2, 2011 order denying its motion to set a hearing on
its motion for destruction of property is GRANTED.

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Given the equitable circumstances surrounding Mr.

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Napier’s acquisition of the firearms in question, the

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United States is ordered to show cause on or before

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August 19, 2011, why the firearms cannot be sold at

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auction with the proceeds being returned to Mr. Napier.

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Mr. Napier shall file any response on or before August
22, 2011.

The motion shall be heard on August 29, 2011

at 10:00am.

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SO ORDERED
Dated: August 5, 2011
/s/ Oliver W. Wanger
United States District Judge

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