[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-16354 MAY 22, 2008
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 02-14108 CV-JCP
BIG TOP KOOLERS, INC., a Florida Corporation,
NICHOLAS C. BRIENZA,
Plaintiffs-Appellants,
versus
CIRCUS-MAN SNACKS, INC.,
a New York Corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 22, 2008)
Before WILSON, COX and BOWMAN,* Circuit Judges.
COX, Circuit Judge:
*
Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
I. OVERVIEW
This appeal is from the district court’s denial of a Fed. R. Civ. P. 60(b) motion
for relief from judgment filed by Plaintiffs Big Top Koolers, Inc. and Nicholas C.
Brienza (collectively “Big Top”). The motion asserts that Big Top’s counsel did not
receive notice of a final order entered by the court, and thus did not timely ask for
rehearing or file a notice of appeal. We find no reversible error in denial of the motion
for two reasons. First, the time for filing notice of appeal had not expired. And,
second, Rule 60(b) no longer provides a basis to extend the time to file a notice of
appeal because of failure to receive notice of the final judgment. We affirm.
II. FACTS AND PROCEDURAL HISTORY
Big Top filed this breach of contract action against Defendant Circus-Man
Snacks, Inc. (“Circus-Man”) involving an ice cream distributorship. After a jury trial,
the district court entered an Order of Remittitur, remitting the $493,750 verdict to
$15,850. In this order, entered on May 25, 2004, the court required Big Top to elect
whether to accept this remitted amount or demand a new trial on damages within ten
days of the order. The court explained “that Plaintiffs must consent to this remittitur
in order for it to be valid. In the absence of Plaintiffs’ consent, the court will have no
alternative but to order a new trial.” (R.3-139 at 5.)
2
On June 10, 2004, Big Top filed a motion for rehearing on the remittitur,
objecting to the order of remittitur, and requesting a higher remitted amount of
damages or, in the alternative, a new trial. Big Top filed an amended motion for
rehearing on the remittitur on June 15, 2004, which requested a higher amount of
damages. On November 12, 2004, the district court denied both Big Top’s motion
and its amended motion for rehearing.
In early September 2004, Hurricane Frances, a Category 3 hurricane, struck
Saint Lucie and Martin County, Florida. About three weeks later, Hurricane Jeanne,
another Category 3 storm, came ashore in the same area. According to John J.
Anastasio, counsel for Big Top, Jeanne destroyed his office and forced the evacuation
of his home. The damage caused by these hurricanes may partially explain the
inactivity in this case from late 2004 through early 2006.
On March 9, 2006—the next docket entry after the district court’s November
12, 2004 order denying Big Top’s motions for rehearing—Anastasio filed a change
of address notice with the district court clerk. Also on March 9, 2006, Big Top filed
a motion seeking a scheduling order and an order setting the case for a trial on
damages, stating that “[t]he defendant [sic] responded that it did not accept the court’s
remitteter [sic] and requested a new trial on damages.” (R.4-155 at 1.)
3
On May 10, 2006, the district court denied Big Top’s motion seeking a
scheduling order and a trial setting. The court reasoned that Big Top had “impliedly
opted” to accept the remittitur in the first place since it did not timely advise the court
that it wanted a new trial or file a notice of appeal. The court reasoned that Big Top
had “waived a right to a retrial of this case.” (R.4-156 at 2-3.) The order then said:
“ORDERED and ADJUDGED that Plaintiff’s Motion for Scheduling Order and to
Set Trial is DENIED. The previously entered Order of Remittitur stands as the final
order of this court. The Clerk of the Court shall close this case for lack of timely
prosecution on the part of the Plaintiff.” (R.4-156 at 3.)
Anastasio says that he never received notice of this order, allegedly because the
district court clerk did not change his address as requested.1 He asserts that he
became aware of the order in September 2006.2 At this point, Big Top filed a motion
1
It appears that Anastasio’s new address was simply added to the docket sheet, since both
his old and new addresses now appear on the docket sheet. It is unclear from the record if the order
was sent to the correct address.
2
In Big Top’s Rule 60 motion, Anastasio claimed that he “did not become aware of the order
until September 22, 2006 at a conference with the plaintiff,” (R.4-158 at 2), apparently as a result
of checking PACER. (Appellant’s Brief at 18.)
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for relief from judgment under Fed. R. Civ. P. 60(a)3 and (b)(1)4 on September 25,
2006. (R.4-158.) In this motion, Big Top sought “to have the order reentered to allow
for timely rehearing and appellate remedies,” since it did not receive notice of the
May 10, 2006 order. (R. 4-158 at 3.) The district court denied Big Top’s motion on
October 24, 2006. (R.4-162.) The court’s rationale was similar to that in its May 10,
2006 order, and the court said that the motion was untimely and without merit. The
court inexplicably ignored Big Top’s contention that it never received notice of the
court’s May 10, 2006 order.
On November 22, 2006, Big Top filed a notice of appeal. The focus of Big
Top’s appeal is on the denial of relief under Rule 60(b)–not Rule 60(a). Specifically,
Big Top challenges (1) the November 12, 2004 order denying its motion for rehearing
on the remittitur order; (2) the May 10,5 2006 order denying Big Top’s motion for a
scheduling order and a trial setting; and (3) the district court’s October 24, 2006 order
3
“(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may
correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in
a judgment, order, or other part of the record. The court may do so on motion or on its own, with or
without notice. But after an appeal has been docketed in the appellate court and while it is pending,
such a mistake may be corrected only with the appellate court’s leave.” Fed. R. Civ. P. 60(a).
4
“(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just
terms, the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . .
. .” Fed. R. Civ. P. 60(b).
5
In Big Top’s notice of appeal, it characterizes this order as “the May 20, 2006” order. We
assume that it meant May 10, 2006, since there was no order on May 20, 2006.
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denying its Rule 60(b) motion. A motions panel of this court dismissed for lack of
appellate jurisdiction Big Top’s appeal as to the November 12, 2004 and May 10,
2006 orders, because Big Top had not filed a timely notice of appeal.6 The court
allowed this appeal to proceed only as to the district court’s October 24, 2006 order
denying Big Top’s Rule 60(b) motion.
III. STANDARD OF REVIEW
We review a district court’s denial of a Rule 60(b) motion for an abuse of
discretion. See Turner v. Sec’y of the Air Force, 944 F.2d 804, 807 (11th Cir. 1991);
Jackson v. People’s Republic of China, 794 F.2d 1490, 1494 (11th Cir. 1986).
IV. CONTENTIONS OF THE PARTIES
Big Top argues that the district court abused its discretion in denying its Rule
60(b) motion because the court (1) did not consider the basis for the motion; (2) failed
to consider appropriate factors in exercising its discretion; (3) failed to consider the
equities; and (4) based its denial of the motion on factual errors.
Circus-Man contends that the district court did not abuse its discretion because
Big Top’s counsel repeatedly delayed and was not diligent in tracking the status of
the case. Circus-Man also argues that Fed. R. App. P. 4(a)(6) provides the only means
of extending the time for an appeal based on failure to receive notice. Finally, Circus-
6
See Fed. R. App. P. 3(a)(1); 4(a)(1)(A).
6
Man contends that the May 10, 2006 order was not an order that Big Top was entitled
to have the district court set aside.
V. DISCUSSION
This appeal from denial of Rule 60(b) relief is timely. Notice of appeal was
filed within thirty days of the denial of the motion. We must, however, determine
when a final judgment was entered that started the thirty-day appeal clock. The
parties disagree about this, and we disagree with both parties.
Circus-Man contends that the November 12, 2004 order was a final judgment,
and that the time to appeal ran from this date. We reject this argument. This order
simply denied Big Top’s motion seeking a rehearing as to the remittitur order, and did
nothing more. (R.4-150.)
Big Top contends that the order of May 10, 2006 (which its counsel asserts he
did not receive) was a final judgment. We agree that this was a final judgment. This
order, as previously noted, said that Big Top had “impliedly opted” to accept the
remittitur, and directed the clerk to close the file. Concluding that this May 10, 2006
order was a final judgment, however, does not end our inquiry; we must decide when
it was entered.
Big Top complains, both in its Rule 60(b) motion and on this appeal, that the
district court did not properly enter final judgment under Fed. R. Civ. P. 58: “Every
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judgment and amended judgment must be set out in a separate document . . . .”
“[C]ases from both the Supreme Court and the circuit courts of appeal make it clear
that the time to file a notice of appeal does not begin to run until a separate judgment
is entered pursuant to Rule 58.” Reynolds v. Golden Corral Corp., 213 F.3d 1344,
1346 (11th Cir. 2000). The record supports Big Top’s contention that the district
court failed to enter a separate document announcing final judgment under Rule 58,
as the docket sheet does not reflect entry of a separate final judgment.
But, Rule 58 provides an alternative means of determining when the final
judgment is deemed entered: “[J]udgment is entered at the following times: . . . (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 occurs: (A) it is set out in a separate
document; or (B) 150 days have run from the entry in the civil docket.” Fed. R. Civ.
P. 58(c) (emphasis added). Because no separate document was entered, final
judgment in this case was deemed entered 150 days after the order was entered in the
civil docket, on May 10, 2006, resulting in a final judgment in October 2006, several
weeks after Big Top filed its Rule 60(b) motion.
Notwithstanding Big Top’s complaint about the district court’s failure to enter
the judgment on a separate document, Big Top’s Rule 60(b) motion, and its brief on
this appeal, assume that the 30-day appeal clock began running on May 10, 2006,
8
when the final order was entered on the civil docket. Of course, Big Top’s
acknowledgment that the time for appeal had not run would necessarily have
demonstrated that it had no need for the post-judgment relief that its motion sought.
Rule 60(b) was not an appropriate vehicle for Big Top to seek relief from the
district court’s May 10, 2006 order. “Lack of notice of the entry does not affect the
time for appeal or relieve—or authorize the court to relieve—a party for failing to
appeal within the time allowed, except as allowed by Federal Rule of Appellate
Procedure 4(a).” Fed. R. Civ. P. 77(d)(2). If Big Top wanted to extend the time to file
an appeal, it should have filed a motion under Fed. R. App. P. 4(a)(6):
6. Reopening the Time to File an Appeal. The district court may
reopen the time to file an appeal for a period of 14 days after the date
when its order to reopen is entered, but only if all the following
conditions are satisfied: (A) the court finds that the moving party did not
receive notice under Federal Rule of Civil Procedure 77(d) of the entry
of the judgment or order sought to be appealed within 21 days after
entry; (B) the motion is filed within 180 days after the judgment or order
is entered and within 7 days after the moving party receives notice under
Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier;
and (C) the court finds that no party would be prejudiced.
In Vencor Hospitals, Inc. v. Standard Life & Accident Insurance Co., 279 F.3d
1306 (11th Cir. 2002), Vencor Hospitals filed a motion under Rule 60(b) asking the
district court to allow it to appeal after the expiration of Rule 4(a)(6)’s 180-day
limitation, because it had not received notice of the final order. We affirmed the
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district court’s denial of 60(b) relief and held that Rule 4(a)(6), a product of a 1991
amendment, provides the only vehicle for extending the time to file notice of appeal
because of lack of notice of the final judgment: “Rule 4(a)(6) provides the exclusive
method for extending a party’s time to appeal for failure to receive actual notice that
a judgment or order has been entered.” Id. at 1311. Big Top argues, for the first time
in its reply brief, that the Rule 60(b) motion should be recharacterized as a Rule 4
motion, noting that its was filed within 180 days of the entry of the final judgment
and therefore was timely under Rule 4(a)(6). We decline to address an argument
advanced by an appellant for the first time in a reply brief. See United States v. Levy,
379 F.3d 1241, 1244 (11th Cir. 2004) (“[This court] repeatedly has refused to
consider issues raised for the first time in an appellant’s reply brief.”). Furthermore,
no such argument was advanced in the district court.
VI. CONCLUSION
We are unable to affirm based on the district court’s reasoning. But, we can
affirm “on any ground that finds support in the record.” Lucas v. Grainger, Inc., 257
F.3d 1249, 1256 (11th Cir. 2001) (quoting Jaffke v. Dunham, 352 U.S. 280, 281, 77
S. Ct. 307, 308 (1957)) (internal quotation marks omitted). This record supports
denial of the motion on two grounds. First, post-judgment relief could have been
properly denied because Big Top’s time for filing notice of appeal had not run when
10
it filed its Rule 60(b) motion. Second, Rule 60(b) cannot be used to accomplish what
Big Top sought, that is, an extension of time to appeal based upon failure to receive
notice of the judgment.
AFFIRMED.
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