884 F.3d 923

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from my colleagues' conclusion that Plumb's appeal of the jury's special verdict was untimely. Unfortunately, Plumb's "untimely" appeal was the result of a procedural morass not of Plumb's making, and should not result in the loss of his right to appeal.
A chronology of the pertinent proceedings provides context for my analysis. On July 8, 2015, the district court denied Plumb's motion filed pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. On July 27, 2015, Plumb filed a notice of appeal from the district court's denial of his Rule 50(b) motion. On December 22, 2015, the district court entered its order awarding Orr attorneys' fees and costs. On January 4, 2016, Plum filed a notice of appeal of the jury's special verdict. Almost thirty days subsequent to the filing of Plumb's notice of appeal, the district court belatedly entered final judgment "in accordance with the [special] jury verdict rendered 6/17/2015."
Pursuant to Rule 58 of the Federal Rules of Civil Procedure :
Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion ... for judgment under Rule 50(b)...
Fed. R. Civ. P. 58(a)(1). Consequently, the court was not required to separately enter judgment for its order denying Plumb's motion filed pursuant to Rule 50(b). However, the same is not true as to the special verdict. Addressing that "form of judgment," Rule 58 provides in pertinent part:
[T]he court must promptly approve the form of the judgment, which the clerk must promptly enter, when ... (A) the jury returns a special verdict with answers to written questions ...
Fed. R. Civ. P. 58(b)(2) (emphases added).
This provision is in stark contrast to Rule 58(b)(1), which provides in relevant part:
[T]he clerk must, without awaiting the court's direction , promptly prepare, sign, and enter the judgment when ... (A) the jury returns a general verdict ...
Fed. R. Civ. P. 58(b)(1) (emphasis added).
Thus, the federal rules direct the clerk to promptly enter judgment without any action on the part of the court if a general verdict is rendered. See Fed. R. Civ. P. 58(b)(1). In contrast, if a special verdict is rendered, the clerk may enter "the form of judgment" only after approval by the court. Fed. R. Civ. P. 58(b)(2). The heading for Rule 58(b)(2) says it all: "Court's Approval Required. " Fed. R. Civ. P. 58(b)(2).
It is undisputed that a special verdict was rendered in this case on June 17, 2015. It is also undisputed that the district court failed to promptly approve the special verdict form, belatedly approving the special verdict form on February 1, 2016, after Padgett filed two notices of appeal, including one challenging the special verdict.
Although Padgett's notice of appeal was filed prior to the district court's approval of the special verdict, the majority nevertheless concludes that Padgett's appeal was untimely. See Majority Opinion , pp. 930-31. To reach this result, the majority maintains that judgment on the jury special verdict was "constructively entered ." Majority Opinion , p. 929 (emphasis added). However, the rule governing special verdicts makes no allowance for the "constructive" entry of judgment. Rather, the rule imposes an affirmative requirement on the judge to approve the special verdict before it is filed. See Fed. R. Civ. P. 58(b)(2).
Interestingly, the majority seeks to subtly shift the blame to Plumb by suggesting that he could have "requested that judgment be set out in a separate document." Majority Opinion , p. 931 (quoting Fed. R. Civ. P. 58(d) ). There are two problems with the majority's suggestion: 1) compliance with Rule 58(d) does not eliminate the court's failure to comply with Rule 58(b)(2), and 2) it should not be the responsibility of a party to remind the court to adhere to the rules.
The majority's reliance on the Fifth Circuit's opinion in Burnley v. City of San Antonio , 470 F.3d 189 (5th Cir. 2006) is misplaced in my view. In its analysis, the Fifth Circuit completely ignored the language of Federal Rule of Civil Procedure 58(b)(2), which explicitly references a special verdict and relied instead on the language of Rule 58(b)(1), which addresses only general verdicts. See id . at 195. This faulty analysis is singularly unpersuasive and encourages noncompliance with the procedural rules. In the twelve years since this case was decided, no other circuit has adopted this wayward analysis of Rule 58, which completely reads Rule 58(b)(2) out of the procedural rules.
Because the district court failed to approve the special verdict form before Plumb filed his notice of appeal, the appeal was timely. We should decide Plumb's appeal of the special verdict on the merits.
This interpretation of the facts gives the district court the benefit of the doubt. If, as the majority notes, the district court judge was required to sign the judgment, Rule 58(b)(2) is yet unsatisfied. See Majority Opinion , pp. 930-31.
As the majority noted, "[t]here's no penalty for filing a premature notice of appeal." Majority Opinion , p. 931.

Passage view · GavelSight