Welbig v. City of Brookings et al

Filing 80

MEMORANDUM OPINION AND ORDER denying 74 Motion to Vacate. Signed by U.S. District Judge Lawrence L. Piersol on 11/14/16. (DJP)

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UNITED STATES DISTRICT COURT

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DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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TAMRAWELBIG,

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CIV 15-4085

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Plaintiff,

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-vs-

MEMORANDUM OPINION AND

* ORDER DENYING DEFENDANTS'
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CITY OF BROOKINGS;
JEFF MILLER;

JORDAN HANSEN;

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JORDAN McCASKILL; and
JUSTINA DIAMOND,

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f/k/a Justina Hilmoe;

MOTION TO VACATE

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Defendants.

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Defendants move to vacate two Orders issued by this Court. (Doe. 74.) After a jury verdict

in favor of Defendants, Plaintiff filed a pro se notice of appeal with the Eighth Circuit on July 19,

2016. (Doe. 59). On August 5, 2016, through her attorneys of record. Plaintiff filed a motion to
withdraw her notice of appeal, doe. 64, and a motion for a new trial pursuant to Rule 59(a)(1)(A) of
the Federal Rules of Civil Procedure, doc. 65. Defendants ask the Court to vacate an order issued

on October 13, 2016 that granted both Plaintiffs motion to withdraw her notice of appeal and her
motion for leave to file a late brief in support of her motion for new trial. (Doe. 69.) The second
order Defendants want the Court to vacate was issued on October 26,2016, and it granted Plaintiff s

motion to extend the time to file a brief in support of her motion for new trial. (Doc. 73.)

Defendants' argument is simple: the filing of the notice of appeal on July 19,2016 divested

this Court of jurisdiction and therefore the orders issued thereafter are nullities. Defendants rely on

Sykes y. United States, 392 F.2d 735, 738 & n.l (8th Cir. 1968), for the "general rule" that "filing
a notice of appeal deprives the district court of jurisdiction over the subject matter." In Sykes, the

Eighth Circuit held that the appellant's timely notice ofappeal on February 2,1967 from ajudgment
ofDeeember 7,1966 divested the lower court ofjurisdiction and,therefore, a subsequent motion for
new trial, a withdrawal ofthe notice ofappeal, a new finaljudgment by the district court, and a new

notice ofappeal regarding the district court's finaljudgment"were all nullities sineejurisdiction then
was in the appellate eourt." Id. at 738. Based on that conclusion, the Eighth Cireuit in Sykes only
addressed the issues arising out ofthejudgment ofDeeember 7,1966, based on the notice ofappeal
filed on February 2,1967. Defendants fail to realize that the law has ehanged since 1968 when Sykes
was decided.

In Griggs v. Provident Consumer Discount Corp., 680 F.2d 927(3d Cir. 1982), rev'd 459
U.S. 56 (1982), the Third.Cireuit interpreted Federal Rule of Appellate Procedure 4(a)(4) to void
appellatejurisdiction only where an appellee could demonstrate that the premature filing ofa notice

of appeal by the appellant resulted in prejudiee to the appellee.^ The Third Circuit accepted
jurisdiction in Griggs despite the fact that the appellant had filed his notice ofappeal while a Motion
for Reeonsideration and a Motion to Alter, Amend and Vaeate Judgment(Fed.R.Civ.P. 59(e)) was

pending before the district court. Id., 680 F.2d at 929-30. Technically, Rule 4(a)(4) required the
appellant to file a new notice of appeal after the distriet court ruled on the Rule 59 motion. The
Third Circuit concluded that the appellant's notice ofappeal had been prematurely filed under Rule

4(a)(4),"but though a premature notice ofappeal is subject to dismissal, we have generally allowed
appellant to proceed unless the appellee can show prejudice resulting from the premature filing of

^ At that time Rule 4(a)(4) provided in relevant part:

If a timely motion under the Federal Rules of Civil Procedure is filed in the distriet
eourt by any party ... under Rule 59 ..., the time for appeal for all parties shall run
from the entry ofthe order... granting or denying... sueh motion. A notiee ofappeal
filed before the disposition of[such motion] shall have no effect. A new notice of

appeal must be filed within the prescribed time measured from the entry ofthe order
disposing ofthe motion as provided above. No additional fees shall be required for
such filing.
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Fed.R.App.P. 4(a)(4)(1982).

the notice .... In our case, the Griggses have shown no prejudice by the premature filing ofa notice
of appeal."Id. at 929 n. 2.

In reversing the Third Circuit in Griggs,the United States Supreme Court held that the filing
of the Rule 59 motion stripped the appellate court of Jurisdiction and required dismissal of the

appeal. See Griggs v. Provident Consumer Discount Co.,459 U.S. 56,61(1982)(per curiam). That
decision was based on the Supreme Court's construction of Rule 4(a)(4) of the Federal Rules of
Appellate Procedure.

Rule 4 had been amended in 1979 to resolve questions surrounding the filing of post trial

motions. At that time,the Advisory Committee on Appellate Rules discussed the problems and the
solution:

The present rule [pre-1979], since it provides for the "termination" ofthe "running"
ofthe appeal time, is ambiguous in its application to a notice ofappeal filed prior to
a post trial motion filed within the 10- day limit. The amendment would make it clear
that in such circumstances the appellant should not proceed with the appeal during
pendency of the motion but should file a new notice of appeal after the motion is
disposed of.

Griggs, 459 U.S. at 60 n.2 (citing Note of Advisory Committee on Appellate RuleSj 28 U.S.C.A.
following Rule 4). A principal consideration behind the 1979 amendments was to prevent wasted
effort by the appellate courts. As the Committee concluded:

[SJinee a notice of appeal filed before the disposition of a post trial motion, even if
it were treated as valid for purposes ofjurisdiction, would not embrace objections to
the denial ofthe motion, it is obviously preferable to postpone the notice of appeal
until after the motion is disposed of.

Id. The Supreme Court expressly approved this interpretation ofRule 4(a)(4)in Griggs. The 1979
amendments to the appellate rules, the Court determined, deprived the courts of appeals of

jurisdiction when a Rule 59 motion was pending in the district court.- Id. at 60. Although in Griggs
the Court considered the effect of a notice of appeal on an already pending Rule 59(e) motion, the

Court's language addressed the effect ofRule 4(a)(4)broadly enough to cover cases where the notice

of appeal is filed prior to the Rule 59 motion, as in the present case. Citing Professor Moore's
treatise with approval, the Court stated that the effect of a Rule 59 motion on a previously filed
notice ofappeal is that "'[t]he appeal simply self-destructs.'"Id. at61(quoting 9 J. Moore,B.Ward
& J. Lucas, Moore's Federal Practice If 204.12[1], p. 4-65 n. 17(1982)).

Applying Griggs,the Eighth Circuit held that a motion to amend thejudgment filed pursuant
to Rule 59(c)two days after a notice ofappeal had been filed voided the notice ofappeal and placed
jurisdiction back with the district court. See FaysoundLtd. v. Falcon Jet Corp.,940 F.2d 339,341-

42(8th Cir. 1991). Like the Supreme Courtin Griggs,the Eighth CircuitinFaysoundrdiQd.on Rule
4(a)(4)ofthe Federal Rules ofAppellate Procedure; "Ifa timely motion under the Federal Rules of
Civil Procedure is filed in the district court by any party ... under Rule 59 to alter or amend the

judgment...,[a] notice of appeal filed before the disposition of[that motion] shall have no effect."
Id. at 341-42. Because the appellant did not file a new notice of appeal after the district court ruled
on the motion to amend and the judgment became final, the Eighth Circuit dismissed the appeal in
for lack ofjurisdiction.^ Id. at 345.

'^Faysound was based on the language of an old version of Rule 4, which provided that a
notice of appeal filed during the pendency of a Rule 59 motion would have "no effect. In 1993,
Rule 4(a) was specifically amended in response to Griggs and now provides that a notice of appeal
filed during the pendency of a Rule 59 motion is simply suspended. See Katerinos v. U.S. Dep't of
Treasury,368 F.3d733,737-38(7th Cir.2004)("Therule therefore was amended in 1993 to provide
that a premature notice of appeal is no longer void, but merely suspended; it"becomes effective ...
when the order disposing ofthe last such remaining motion is entered."(internal quotation marks
omitted)); also Fed.R.App.P. 4(a)(4)(B)(i). Thus,the initial notice of appeal timely filed after
judgment remains,effective and is not rendered invalid by timely filed post-judgment motions

specified in the rule. United States v. Duke,50F.3d. 571,575(8th Cir. 1995). But to challenge
the posttrial rulings,the appellant must file atimely new or amended notice ofappeal.Fed.R.App.P^
4(a)(4)(B)(ii) (stating "[a] party intending to challenge an order disposing of any motion listed

[which includes posttrial motions of the type at issue here]... must file a notice of appeal, or an
amended notice of appeal"); see also Life Plus Int'l v. Brown, 317 F.3d 799, 805 (8th Cir. 2003)

("Because no new or amended notice of appeal was filed regarding the posttrial order, we lack
jurisdiction to review it").

Under Griggs,Faysound and Rule 4(a)(4) ofthe Federal Rules ofAppellate Proeedure, the

motion for new trial filed by Plaintiffon August 5,2016 divested the Eighth Cireuit ofjurisdietion
in this ease and returned jurisdiction to this Court. As a result, the filings and orders after that date
are not nullities. Accordingly,

IT IS ORDERED that Defendants' Motion to Vacate, doe. 74, is denied.

Dated this|^^ay ofNovember,2016.
BY THE COURT:

L^renee L. Piersol
nstriet Court Judge
ATTEST::

JOSEPH HAAS,CLERK
BY:

(SEAL)

DEPUTY