Leeward Petroleum Company, Ltd. moves to dismiss this appeal as untimely contending that an earlier order disposing of some issues in the case should be considered the final judgment. Denied.
Before: MANSFIELD, PIERCE and PRATT, Circuit Judges.
This matter comes before us upon the motion of defendant-appellee Leeward Petroleum Company, Ltd. ("Leeward") to dismiss this appeal as untimely taken. On October 24, 1986, we denied the motion with an opinion to follow.*fn1
Plaintiff-appellant Kanematsu-Gosho, Ltd. ("KGL") commenced this action in the United States District Court for the Southern District of New York, alleging the contamination of a cargo of jet fuel. On January 8, 1986, after a non-jury trial, Judge Motley filed an opinion in which she dismissed all of KGL's claims. The opinion stated in pertinent part:
Plaintiff is assessed the reasonable attorney fees of defendants Leeward, Amigos, and Mobil, and of third-party defendant Saybolt. By March 16, 1986 the prevailing parties are ordered to submit competent documentation to the court of their costs and attorney fees incurred in this suit. A hearing on the calculation of costs and attorney fees will be held on Thursday, April 3 at 4:30 P.M. in courtroom 906.
On January 9, 1986, Judge Motley filed a document entitled "ORDER" that contained nearly identical language. The clerk entered this order on the district court docket sheet as an "ORDER".
On January 17, 1986, KGL moved pursuant to Fed. R. Civ. P. 52(b) to amend the "judgment." Judge Motley filed an opinion denying the motion on March 13, 1986.
Pursuant to the opinion of January 8, 1986 and order of January 9, 1986, proceedings were held with respect to the amount of costs and attorneys' fees to be assessed against KGL. On June 27, 1986, the district judge filed an opinion and separate order setting the amounts thereof. The order, which was denominated "JUDGMENT #86,1528 & ORDER," concluded, "plaintiff's claims in this case having all been dismissed and attorney fee award amounts having now been determined, this case is hereby closed." KGL filed its notice of appeal on July 24, 1986.
Leeward moves to dismiss the appeal, arguing that the opinion and order of January 8 and January 9, 1986, respectively, together constituted the district court's final judgment on KGL's claims and on the issue of the defendants-appellees' entitlement to an award of costs and attorneys' fees. This proceeding purports to be an appeal from a "final decision of the district court ." 28 U.S.C. § 1291 (1982). As such, a notice of appeal must be filed "within 30 days after the date of entry of the judgment or order appealed from." Fed. R. App. P. 4(a)(1). Leeward asserts that since the January 1986 opinion and order disposed of all issues except the "collateral" one of attorneys' fees, they constituted a final judgment. Thus, it is suggested that, following the extension of time to appeal which was effected by KGL's unsuccessful Rule 52(b) motion, see Fed. R. App. P. 4(a)(4), the time for KGL to appeal expired in April 1986 -- about three months before KGL filed its notice of appeal.
Fed. R. Civ. P.58 provides that "[e]very judgment shall be set forth on a separate document." This is an obligation imposed upon the clerk of the district court unless the court directs otherwise. Id., see also Fed. R. Civ. P. 79. The time for appeal does not start running until this separate document is entered. See Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir. 1986). The amendment requiring a separate document was added to Rule 58 in 1963. The notes of the advisory committee pertaining to this amendment indicate that where, as here, the district court has written an opinion with "apparently directive or dispositive words," it was often unclear whether a "judgment" had been entered for the purpose of starting the time running for taking an appeal. As stated by the Supreme Court in Bankers Trust Co. v. Mallis,
the separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later than an earlier document or entry had been the judgment and dismiss the appeal as untimely.
435 U.S. 381, 385, 55 L. Ed. 2d 357, 98 S. Ct. 1117(1978) (per curiam). The Supreme Court has instructed that the separate document requirement "must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered." United States v. Indrelunas, 411 U.S. 216, 221-22, 36 L. Ed. 2d 202, 93 S. Ct. 1562 (1973) (per curiam). In Indrelunas, a notation of the jury's verdict had been entered on the district court docket sheet -- that notation directed, "enter judgment on the verdicts. Jury discharged." ...