In My Opinion: Do You Have a Proper Rule 58 Judgment?
Experienced appellate practitioners need not read further.
I encourage less experienced practitioners to listen to the January 12th oral argument in Perry. The defendant raised a jurisdictional issue based upon its belief that plaintiff was not timely in its notice of appeal. The parties took opposite positions on whether an order “terminating the case” or an order granting summary judgment entered two days earlier was the judgment appealed from.
The Court, however, found neither position persuasive. The panel, particularly Chief Judge Easterbrook, believed there was no proper judgment in the record. They expressed frustration that district courts (and the lawyers before them) are not following the FRCP 58 entry-of-judgment requirements . Regardless how the Court eventually disposes of the issue, practitioners are advised to follow the advice of the Court and ensure that a proper judgment is entered. As Chief Judge Easterbrook put it, a proper Rule 58 judgment requires a separate document and must state the relief granted and be signed by the judge.
Assuming there was no proper judgment entered in the case, the plaintiff does not have to worry about the timing issue. FRAP 4(a)(7)(A)(ii) provides that the judgment is considered entered 150 days from the entry of the order. Even if none of this affects the validity of an appeal (see FRAP 4(a)(7)(B)), any party before the Court would rather not waste the time at argument addressing the issue and incur the frustration of the panel.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select