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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< )i tl^ M ■' n -f* UNITED STATES DISTRICT COURT ^:v D 11 / DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION **************************************************** * * TAMRAWELBIG, * CIV 15-4085 * Plaintiff, * * -vs- MEMORANDUM OPINION AND * ORDER DENYING DEFENDANTS' * CITY OF BROOKINGS; JEFF MILLER; JORDAN HANSEN; * JORDAN McCASKILL; and JUSTINA DIAMOND, * f/k/a Justina Hilmoe; MOTION TO VACATE * * * * * Defendants. * * **************************************************** 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. ^ 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

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