Kelly v. Moore

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
______________________________ Clerk

No. 03-60236
______________________________

JOE B. KELLY, M.D.,

Plaintiff-Appellant-Cross-Appellee,

versus

JERRY MOORE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS
A POLICE OFFICER FOR THE CITY OF JACKSON, MISSISSIPPI,

Defendant-Appellee-Cross-Appellant.

Appeals from the United States District Court
for the Southern District of Mississippi

Before JOLLY, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

A Mississippi jury returned a $1.5 million verdict in

favor of Dr. Kelly for his mistreatment in connection with a

routine traffic stop. The district court vacated the award and

ruled that Kelly must either accept remittitur or proceed to a new

trial on damages. Kelly took the latter option and then

immediately appealed the district court’s ruling. We conclude that

the district court’s ruling is not final and dismiss the appeal for

lack of appellate jurisdiction.
 I. BACKGROUND

On March 14, 2001, Kelly filed suit in federal court

alleging under 42 U.S.C. § 1983 and related state law claims that

his Fourth Amendment rights prohibiting unlawful arrest, unlawful

detention and malicious prosecution had been violated when he was

arrested, and temporarily detained, on a case of mistaken identity.

The case proceeded to a three-day trial. On September 18, 2002,

the jury found for Kelly on all three claims and awarded $1 million

in compensatory damages and $500,000 in punitive damages.

On September 27, Kelly moved for attorneys’ fees, costs

and expenses. Moore responded with a Rule 50 motion for JMOL, and

alternatively, for a Rule 59(b) new trial or remittitur. The

parties stipulated that Moore’s post-trial motions would be deemed

timely filed on the day the district court entered final judgment.1

The court entered judgment, including attorneys’ fees and costs of

$28,706.77, on December 12, 2002.

Later, on March 6, 2003, the district court denied

Moore’s Rule 50(b) motion for JMOL, denied the Rule 59(b) motion

for a new trial on liability, but conditionally granted the motion

for a new trial on damages, unless Kelly accepted the court’s

remittitur of the jury award. The court conditionally remitted the

compensatory award to $10,000 and the punitive damages award to

1
This stipulation covered the new trial, Moore’s Rule 60(b) motion to
reduce Kelly’s attorneys’ fees award, and Moore’s additional Rule 60(b) motion
for a new trial on liability and damages.

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$5,000. Kelly declined remittitur and elected to proceed to a

second trial on damages, but on that same day, he filed his notice

of appeal seeking reinstatement of the jury award. Moore timely

filed his cross-appeal. On April 18, the parties signed an agreed

order staying all other proceedings in the district court pending

resolution of this appeal.

II. DISCUSSION

Before reaching the merits, we must be satisfied that we

have appellate jurisdiction. See Hayes v. State of La., 18 F.3d

1319, 1320 (5th Cir. 1994); Gutierrez v. City of San Antonio, 139

F.3d 441, 445 (5th Cir. 1998). The question here is whether the

district court’s grant of a new trial is an appealable final

decision pursuant to 28 U.S.C. § 1291.

A decision is final under § 1291 when it “ends the

litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463,

467, 98 S. Ct. 2454, 2457 (1978) (citation and quotation omitted).

“An order granting a new trial is generally not appealable because

such an order is interlocutory and not a final judgment under

28 U.S.C. § 1291.” Wiggs v. Courshon, 485 F.2d 1281, 1282

(5th Cir. 1973) (citations omitted); see also Ortiz-Del Valle v.

Nat. Basketball Ass’n, 190 F.3d 598, 599 (2d Cir. 1999).2 However,

2
Although the decision to order a new trial on damages is not
immediately appealable, it is ultimately reviewable. See Seltzner v. RDK Corp.,
756 F.2d 51, 51 (7th Cir. 1985) (“If the plaintiff isn’t satisfied with the
outcome of the new trial he can appeal from the judgment entered at the

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a “narrow exception . . . arises when the district court enters the

order without jurisdiction.” Herold v. Burlington Northern, Inc.,

761 F.2d 1241, 1249 (8th Cir. 1985); Wiggs, 485 F.2d at 1282 (“In

such instances, either an appeal from the order or an extraordinary

writ may be appropriate”) (citing United States v. Mayer, 235 U.S.

55, 35 S. Ct. 16 (1914)). “Orders granting a new trial on the

court’s own initiative after the expiration of the ten-day period

have been held appealable under this exception.” Wiggs, 485 F.2d

at 1282 (citation omitted).

Federal Rule of Civil Procedure 59 affords two means by

which a district court can grant a new trial. Our jurisdiction

turns on characterizing the court’s action under the Rule’s

subsections. Rule 59(b) allows a party to file a motion for a new

trial within ten days after entry of judgment. Rule 59(d) permits

the court, also within ten days of entry of judgment, sua sponte to

order a new trial. Importantly, Rule 59(d) further provides that

“[a]fter giving the parties notice and an opportunity to be heard,

the court may grant a timely motion for a new trial for a reason

not stated in the motion.” FED. R. CIV. P. 59(d). Rule 59(d) also

requires that “[w]hen granting a new trial on its own initiative or

for a reason not stated in a motion, the court shall specify the

grounds in its order.” Id. The district court met this

requirement.

conclusion of that trial and can seek reinstatement of the original jury
award.”).

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 Moore filed a Rule 59(b) motion within ten days of the

judgement; no appellate jurisdiction exists if the district court

merely ruled on that motion. Thus, Moore argues the new trial

ruling was in response to his Rule 59(b) motion even though he

concedes that the decision, particularly with respect to punitive

damages, was premised on a different legal theory. In Moore’s

view, the Federal Rules of Civil Procedure require only that the

district court grant the relief Moore sought — whether the basis

for that relief diverges from the party’s motion is irrelevant. We

disagree.

Federal Rule of Civil Procedure 7(b)(1), which governs

Rule 59(b)’s pleading requirement, demands some degree of

specificity on the movant’s part. MOORE’S FEDERAL PRACTICE CIVIL § 59

App. 03[2]. “This rule affords the court and the opposing party

notice of the substance of the basis for the requested order; Rule

7(b)(1) does not require ritualistic detail.” Id. at § 59.10[1].

Also, the 1966 amendment to Rule 59(d), which permits the court to

base its decision on a “reason not stated” in a timely motion,

further suggests the need for some level of specificity on the

movant’s part beyond merely requesting remittitur. Consequently,

the district court’s ruling, which is based on legal theories

absent from Moore’s Rule 59(b) motion, is appropriately

characterized as arising under Rule 59(d).

Kelly seeks to sustain our appellate jurisdiction over

the Rule 59(d) order by arguing that the district court exceeded

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its jurisdiction by: ruling on its own initiative more than ten

days post-judgment, ruling for reasons not stated in Moore’s

motion, and failing to comply with Rule 59(d)’s “notice”

requirement. Kelly conflates these distinct arguments and

incorrectly assumes the ten-day limit applies to all Rule 59(d)

decisions. Rule 59(d) draws a distinction between a ruling on the

court’s own motion and a ruling based on a reason not contained in

the party’s motion. The district court, acting on its own motion,

must rule within ten days after entry of judgment. MOORE’S FEDERAL

PRACTICE CIVIL § 59.11[1][a] (citing United States Leather, Inc v. H

& W P’ship, 60 F.3d 222, 225 (5th Cir. 1995)) (“The 10-day filing

period is mandatory and jurisdictional, and may not be extended by

the court or by stipulation or waiver of the parties.”). However,

the ten-day period does not apply to a decision based on a reason

not stated in a timely filed Rule 59(b) motion. See id. at

§ 59.11[2][b]; Peterman v. Rock Island & Pac. R.R. Co., 493 F.2d

88, 91 (8th Cir. 1974) (“The 1966 amendment . . . constitutes a

change in the law granting authority to the trial court to grant a

new trial outside the limitation period for reasons initiated by

the court, but only in the event a party has already served a

motion for a new trial.”) (citations omitted). The district

court’s decision was not sua sponte; rather, the district court

based its decision on reasons not stated in Moore’s timely motion.

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The court’s decision falls within Rule 59(d), but it is not

controlled by the ten-day jurisdictional limit.3

Nevertheless, the district court failed to give the

requisite “notice and opportunity to be heard” before it ordered a

new trial. FED. R. CIV. P. 59(d). The remaining inquiry is whether

this error resulted in an order entered without jurisdiction that

falls within the Wiggs “narrow exception” to the § 1291 finality

requirement. We conclude it does not.

Jurisdictional rules implicate the court’s power to

adjudicate a dispute. See Ex parte McCardle, 7 Wall. 506, 514

(1868). Rule 59(d)’s “notice” requirement, unlike the ten-day rule

for sua sponte decisions, does not implicate the district court’s

power to reach the merits. See Cherokee Lab., Inc. v. Pierson, 415

F.2d 85, 91 (10th Cir. 1969); see also 11 CHARLES ALLEN WRIGHT & ARTHUR

MILLER FEDERAL PRACTICE AND PROCEDURE § 2813 at 148 (2d ed. 1995) (“The

court’s failure to give notice . . . should not automatically make

its action a nullity.”); Valtrol, Inc. v. General Connectors Corp.,

3
Kelly counters that this court’s decision in Tarlton v. Exxon, 668
F.2d 973 (5th Cir. 1982) requires uniform compliance with the ten-day limitation
period. In Tarlton, there were two defendants — Exxon and Diamond M. Exxon
timely filed a Rule 59(b) motion after the jury returned a verdict for the
plaintiff. Diamond M did not, but orally attempted to join Exxon’s motion after
the expiration of the ten-day period. Id. at 977. The district court granted
Exxon’s motion and ordered a new trial on damages, as to Diamond M, based on a
reason set forth in Exxon’s motion (unless the plaintiff accepted remittitur).
Id. This circuit held that the district court exceeded its Rule 59(d)
jurisdiction, concluding that Diamond M’s oral motion was not timely and
therefore without effect. “The trial court’s grant of a new trial [could] thus
be upheld only if it satisfie[d] the provision of Rule 59(d) for sua sponte
judicial action within 10 days of entry of judgment.” Id. at 977-78. The
instant case is fundamentally different because Moore timely filed a Rule 59(b)
motion.

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884 F.2d 149, 156 (4th Cir. 1989) (“The notice requirement may not

be ironclad . . . but the rule clearly contemplates notice in the

ordinary case) (citations omitted); Benjamin Kaplan, Continuing

Work of the Civil Committee: 1966 Amendments of the Federal Rules

of Civil Procedure (II), 81 Harv. L. Rev. 591, 604 (1968) (“The

[notice] provision should . . . be read as a directive but not as

conditioning effective action by the judge[.]”). The district

court’s decision accordingly was within its 59(d) jurisdiction,

making this appeal interlocutory rather than a § 1291 final

appealable order. This court is without appellate jurisdiction.

III. CONCLUSION

For the reasons stated above, we DISMISS the appeal for

lack of appellate jurisdiction.

DISMISSED.

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