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.
2
$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
3
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.”).
4
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
5
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.
6
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.
7
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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