IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21181
EARL LUDGOOD,
Plaintiff-Appellant,
versus
APEX MARINE CORPORATION SHIP MANAGEMENT,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
October 25, 2002
Before GARWOOD and CLEMENT, Circuit Judges and RESTANI,* Judge.1
PER CURIAM:
Earl Ludgood appeals the district court's grant of summary
judgment in favor of the defendant-appellee APEX Marine Corp. on
appellant's employment racial discrimination claim pursuant to
Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §
2000e and his related retaliation claim. We dismiss the appeal
*The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by
designation.
because the only notice of appeal is untimely.
Facts and Proceedings Below
Ludgood filed the instant action on August 27, 1999. He
asserted in his complaint that APEX refused to promote him because
of his race and terminated him in retaliation for filing the EEOC
complaint.
On March 22, 2001, APEX filed a motion for summary judgment.
The district court issued on a separate document its “Final Summary
Judgment” dated October 17, 2001, dismissing all of Ludgood's
claims, which was entered on the docket on that date. The district
court thereafter issued a ten page “Memorandum Opinion and Order”
dated October 23, 2001, which was entered on the docket on that
date, setting forth its reasoning and the authorities on which it
relied. In the October 23, 2001 opinion and order the court
determined that Ludgood presented no summary judgment evidence that
he was qualified for the promotion, that he applied for or even
sought the promotion, that APEX's employment decisions were
motivated by racial bias, or that APEX fired Ludgood in retaliation
for filing a complaint with the Texas Commission on Human Rights
and the EEOC. Accordingly, the court in its October 23 opinion and
order determined that both Ludgood's Title VII racial
discrimination claim and his retaliation claim were without merit.
On November 20, 2001, appellant filed his notice of appeal
with the district court.
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Discussion
We address whether the appeal was timely filed, thereby
providing this court with jurisdiction. Rule 4(a)(1)(A) of the
Federal Rules of Appellate Procedure provides:
“(a) Appeal in a Civil Case
(1) Time for Filing a Notice of Appeal
(A) In a civil case, except as provided in Rules
4(a)(1) (B), 4(a)4, and 4(c) , the notice of appeal
required by Rule 3 must be filed with the district
clerk within 30 days after the judgment or order
appealed from is entered.”
The appellant in the case sub judice has not sought to take
advantage of provisions Rule 4(a)(5) or Rule 4(a)(6), Fed.R.App.P.1
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Rules 4(a)(5) and 4(a)(6), Fed.R.App.P., provide as follows:
“(5) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal
if:
(i) a party so moves no later than 30 days after the
time prescribed by this Rule 4(a) expires; and
(ii) that party shows excusable neglect or good
cause.
(B) A motion filed before the expiration of the time prescribed in Rule
4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion if
filed after the expiration of the prescribed time, notice must be given to the other
parties in accordance with local rules.
(C) No extension under this Rule 4(a)(5) may exceed 30 days after the
prescribed time or 10 days after the date when the order granting the motion is
entered, whichever is later.
(6) Reopening the Time to File an Appeal.
(A) the motion is filed within 180 days after the judgment or order is
entered or within 7 days after the moving party receives notice of the entry,
whichever is earlier;
(B) the court finds that the moving party was entitled to notice of the entry
of the judgment or order sought to be appealed but did not receive the notice from
the district court or any party within 21 days after entry; and
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Rule 26, Fed.R.App.P. clearly prescribes how courts are to compute
the time for filing a notice of appeal:
“(a) Computing Time. The following rules apply in
computing any period of time specified in these rules or
in any local rule, court order, or applicable statute:
(1) Exclude the day of the act, event, or
default that begins the period.
(2) Exclude intermediate Saturdays, Sundays,
and legal holidays when the period is less
than 7 days, unless stated in calendar days.
(3) Include the last day of the period unless
it is a Saturday, Sunday, legal holiday, or --
if the act to be done is filing a paper in
court -- a day on which the weather or other
conditions make the clerk's office
inaccessible.
. . .
(b) Extending Time. For good cause, the court may extend
the time prescribed by these rules or by its order to
perform any act, or may permit an act to be done after
that time expires. But the court may not extend the time
to file:
(1) a notice of appeal (except as authorized
in Rule 4) or a petition for permission to
appeal; or
(2) a notice of appeal from or a petition to
enjoin, set aside, suspend, modify, enforce,
or otherwise review an order of an
administrative agency, board, commission, or
officer of the United States, unless
specifically authorized by law.
(c) Additional Time after Service. When a party is
required or permitted to act within a prescribed period
after a paper is served on that party, 3 calendar days
are added to the prescribed period unless the paper is
(C) the court finds that no party would be prejudiced.”
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delivered on the date of service stated in the proof of
service.”2
In accordance with these provisions, in computing appellant's
time for filing a notice of appeal, the day the judgment was
entered, Wednesday, October 17, 2001, is excluded. Fed.R.App.P.
26(a)(1). Thus, beginning with October 18, 2001, Ludgood had a
period of thirty days in which to file his notice of appeal.
Fed.R.App.P. 4(a)(1)(A). Therefore, Friday, November 16, 2001 was
the last day of that thirty-day period.
Appellant's Exhibit A attached to its Memorandum in
Opposition to Motion to Dismiss is a certified mail receipt
reflecting a November 15, 2001 mailing to the United States
District Court of the Southern District of Texas which was
received on November 20, 2001 which appellant asserts, and
appellee does not dispute, contained appellant’s notice of appeal.
The Notice of Appeal is stamped as filed on November 20, 2001.
Appellant merely contends that, given an additional three
2
The rules as quoted in this opinion are those now in effect. Certain amendments, not
relevant to the disposition of this matter, have been made effective December 1, 2002. We also
noted that Fifth Circuit Rule 26.1 provides:
“Computing Time. Except for briefs and record excerpts, all other papers,
including petitions for rehearing, are not timely unless the clerk actually receives
them within the time fixed for filing. Briefs and record excerpts are deemed filed
on the day sent to the clerk by a third-party commercial carrier for delivery within
3 calendar days, or on the day of mailing if the most expeditious form of delivery
by mail is used. The additional 3 days after service by mail, or after delivery to a
commercial carrier for delivery within 3 calendar days referred to in FRAP 26(c),
applies only to matters served by a party and not to filings with the clerk of such
matters as petitions for rehearing under FRAP 40, petitions for rehearing en banc
under FRAP 35, and bills of costs under FRAP 39.”
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days for filing by mail provided for in Fed.R.App.P. 26(c), the
last date on which the notice of appeal had to have been received
was November 20, 2001. Appellant does not explain how an
additional three days would extend the date from November 16 to
November 20. In any event, the additional three calender days
after service by mail as permitted by Fed.R.App.P. 26(c) is
unavailable because the time for filing notice of appeal commences
to run from the entry of judgment and not “after a paper is served
on that party” as provided in Rule 26(c). This court held the
three-day grace period for mailing to be inapplicable for
extending the thirty days allowed for notices for appeal in
Reynolds v. Hunt Oil Co., 643 F.2d 1042 (5th Cir. 1981). It is
further well established that a notice of appeal is effective on
the date it is actually filed, United States v. Clark, 193 F.3d
845 (5th Cir. 1999); In re Arbuckle, 988 F.2d 29 (5th Cir. 1993),
and is filed as of the date it is actually received by the court,
not as of the date it is mailed. Matter of Robinson, 640 F.2d
737, 738 (5th Cir. 1981), citing Matter of Bad Bubba Racing
Prods., Inc., 609 F.2d 815 (5th Cir. 1980).
Thus, despite the mailing of the notice of appeal on November
15, the relevant rules and clear precedent establish that the
clerk would have had to receive the notice no later than November
16, 2001 in order for the appeal to be timely.
Although appellant does not raise this issue, we nevertheless
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address the question of whether the October 17, 2001 “Final
Summary Judgment” met the criteria for a final judgment, thereby
starting the clock for a timely appeal. A final judgment must be
(1) set forth on a separate document and (2) entered on the
district court civil docket sheet. Fed.R.Civ.P. 58; see, Williams
v. Burlington Northern, Inc., 832 F.2d 100 (7th Cir. 1987). A
judgment is said to be final if it conclusively determines the
rights of the parties to the litigation and leaves nothing for the
court to do but execute the order, see, e.g., Coopers & Lybrand v.
Livesay, 98 S. Ct. 2454 (1978), or resolve collateral issues, see,
e.g., Budinich v. Becton Dickinson & Co., 108 S. Ct. 1717 (1988).
Rule 58 provides in pertinent part that “every judgment shall
be set forth on a separate document” and that “[a] judgment is
effective only when so set forth.” Fed. R. Civ. P. 58. According
to the Advisory Committee Notes, the judgment must be “set out on
a separate document--distinct from any opinion or
memorandum--which provides the basis for the entry of judgment.”
Notes of Advisory Committee on Rules, 1963 Amendment, following
Fed. R. Civ. P. 58.
The sole purpose of Rule 58's separate-document requirement
was to clarify when the time for an appeal begins to run. Bankers
Trust Co. v. Mallis, 98 S. Ct. 1117 (1978); Clough v. Rush, 959
F.2d 182, 184-85 (10th Cir. 1992) (discussing history and purpose
of Rule 58). It was added in 1963 to prevent uncertainty “over
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what actions ... would constitute an entry of judgment, and
occasional grief to litigants as a result of this uncertainty.”
United States v. Indrelunas, 93 S. Ct. 1562 (1973). In
Indrelunas, the Court held that Rule 58 was a “‘mechanical change’
that must be mechanically applied in order to avoid new
uncertainties as to the date on which a judgment is entered.” 93
S.Ct. at 1565. “The entry of a final judgment under Rule 58
starts the clock for an appeal.” Reytblatt v. Denton, 812 F.2d
1042, 1043 (7th Cir. 1987).3
The October 17th ruling conclusively determined the rights of
the parties and left nothing further to be resolved. It was not
only entitled “Final Summary Judgment,” but it also concluded with
the statement “This is a FINAL JUDGMENT.” (caps and bold in the
original). The entirety of that document is as follows:
FINAL SUMMARY JUDGMENT
“In accordance with the Court's Memorandum and Order of this
date, the Court
ORDERS that Defendant APEX Marine Corp. is granted summary
judgment on all claims brought against it by Plaintiff Earl
Ludgood in the above-referenced action. The Court further
ORDERS that Plaintiff pay all costs of court.
This is a FINAL JUDGMENT
SIGNED at Houston, Texas, this 17th day of October, 2001.
/s Melinda Harmon, United States District Judge”
The Memorandum Opinion and Order referenced was actually
dated and entered on October 23, 2001. Measured from October 23,
3
We call the bar’s attention to the amendments to Fed.R.Civ.P. 58 effective December 1,
2002.
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2001, a notice of appeal filed November 20, 2001 would be timely.
It is clear to us, however, that October 17 is the operative date.
In Diamond v. McKenzie, 770 F.2d 225 (D.C. Cir.1985), the same
question of which document starts the clock arose, as the
memorandum opinion and order was filed a month following the
initial order. The factors that the Diamond court relied upon in
holding the first document did not constitute a final judgment
were that it was entitled “order” rather than “final judgment,”
included a substantial amount of legal reasoning, and cited a
number of authorities. None of these factors are present here.
Indeed, the converse is true, as the October 17th document was
clearly labeled a “final judgment,” did not contain any legal
reasoning, and cited no legal authorities.
Thus, the only potential ambiguity in the case sub judice is
that the memorandum order and opinion was entered six days after
the final judgment. However, we agree with the 11th Circuit that
this does not alter the fact that the date of the final judgment
remains the operative date for determining the timeliness of an
appeal. Department of Revenue v. Brandt (In re Southeast Bank
Corp.), 97 F.3d 476 (11th Cir.1996). Although the memorandum
order and opinion was filed after the final judgment, the 11th
Circuit held the appeal was untimely because the clock began
running on the date the final judgment was entered, even though
the memorandum opinion to which it referred had yet to be filed.
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The court noted, “Although the grounds for rehearing or appeal may
not be clearly known or identified until the memorandum opinion
has issued, where the judgment is entered prior to the memorandum
opinion, a party is free to timely file a motion for rehearing and
later file a supplemental memorandum based upon the memorandum
opinion.” Brandt, 97 F.3d at 479, n.8. Here, it is unambiguously
clear that the October 17, 2001 “Final Summary Judgment” meets all
the criteria of a Rule 58 final judgment and that the October 23,
2001 “Memorandum Opinion and Order” does not. Moreover, the
notice of appeal here purports to appeal “the Judgment of this
Court entered on October 17, 2001" and makes no mention of or
reference to the Memorandum Opinion and Order dated and entered
October 23, 2001.
Conclusion
Because we find the appellant's only notice of appeal was not
timely filed, we hold that this Court does not have jurisdiction
over the present appeal. The appeal is accordingly dismissed.
APPEAL DISMISSED.
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