MERRILL LYNCH, PIERCE, v. KURTENBACH

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Docket Number

No. 75-1002.

Attorney(S)

Eugene Davis, Davis, Cross, Scott Grace, Des Moines, Iowa, for appellant. Sherry J. Raduenz, Decorah, Iowa, for appellee.

Judges

Martin Donald Van Oosterhout

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Smart Summary

Factual and Procedural Background

Merrill Lynch, Pierce, Fenner Smith, Inc., a commodities broker, brought a diversity action against Larry O. Kurtenbach to recover balances allegedly due under a commodity account agreement. The district court entered judgment for Merrill Lynch in the amount of $8,158.75, representing only a portion of the $14,781.25 claimed. Merrill Lynch sought to appeal the final judgment. The appeal was dismissed for lack of subject matter jurisdiction due to Merrill Lynch's failure to file a timely notice of appeal.

The final judgment was entered on September 30, 1974. Merrill Lynch filed a timely Rule 59(e) motion to amend the judgment on October 11, 1974, which was denied on November 6, 1974. Merrill Lynch filed its notice of appeal on December 9, 1974, which was more than 30 days after the denial of the Rule 59(e) motion.

Legal Issues Presented

Whether the court of appeals had subject matter jurisdiction to hear the appeal given the timing of the notice of appeal.
Whether the appellant's failure to timely file a notice of appeal under Rule 4(a), Fed.R.App.P., could be excused or extended based on excusable neglect or other procedural rules.
Whether the appellate court should remand the case to the district court to consider a nunc pro tunc extension of time to file the notice of appeal.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. June, 503 F.2d 442 (8th Cir. 1974)	Duty of appellate courts to examine jurisdiction sua sponte; timely filing of notice of appeal required for jurisdiction.	Confirmed that the court must ensure jurisdiction exists despite parties not raising the issue; applied to find lack of jurisdiction due to late filing.
United States v. Robinson, 361 U.S. 220 (1960)	Notice of appeal must be filed within 30 days of judgment in civil cases absent a timely Rule 59(e) motion.	Used to establish the strict timing requirements for filing notices of appeal and tolling effect of Rule 59(e) motions.
Whipp v. Weinberger, 505 F.2d 800 (6th Cir. 1974)	Rule 6(e) does not apply to computing time for filing a notice of appeal.	Rejected appellant's argument that the three-day mail extension applied to the notice of appeal deadline.
Way v. Gaffney, 434 F.2d 996 (10th Cir. 1970)	District court lacks power to extend appeal time after initial 30-day period without motion and notice.	Supported the court's conclusion that no extension could be granted after the 60-day absolute period without proper motion and notice.
United States v. Williams, 508 F.2d 410 (8th Cir. 1974)	Interpretation of excusable neglect provisions in criminal appeal Rule 4(b).	Distinguished the criminal rule from civil Rule 4(a), leading to a different treatment of excusable neglect in civil appeals.
Files v. Rockford, 440 F.2d 811 (7th Cir. 1971)	Requirement that post-deadline extension requests be made by motion with notice.	Reinforced the procedural requirement that extensions after the deadline must be sought by motion, which was not done here.
Cohen v. Plateau Natural Gas Co., 303 F.2d 273 (10th Cir. 1962)	Trial court's ex parte extension of appeal time void if made after initial 30 days without notice.	Used to hold that the district court's extension power is limited and that late extensions without notice are void.
Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975)	Remand for nunc pro tunc extension of appeal time to avoid injustice.	Discussed but declined to apply remand procedure because appellant would not prevail on merits.
Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084 (3d Cir. 1972)	Same as Stirling: remand for nunc pro tunc extension to cure jurisdictional defects.	Considered but not followed in this case given the circumstances and merits.

Court's Reasoning and Analysis

The court began by affirming the well-established principle that appellate jurisdiction is limited to cases where the notice of appeal is timely filed, as mandated by Rule 4(a) of the Federal Rules of Appellate Procedure. Although the appellant filed a timely Rule 59(e) motion which tolled the appeal period until its denial on November 6, 1974, the notice of appeal was filed on December 9, 1974, exceeding the 30-day limit for filing after the denial.

The appellant's argument that Rule 6(e) (providing a three-day extension for mailing) applied was rejected because Rule 6(e) does not extend time for filing notices of appeal, which run from entry of judgment.

The court then examined whether the appellant's late filing could be excused under the excusable neglect provision of Rule 4(a). It emphasized that after the initial 30-day appeal period, any request for an extension must be made by motion with notice. The record showed no such motion was timely filed, and the motion made after the 60-day absolute limit was too late to confer jurisdiction.

The court cited binding precedent holding that district courts lack power to extend appeal times after expiration of the absolute deadline without proper motion and notice, rendering any such extensions void.

Finally, the court declined to remand the case to the district court to consider a nunc pro tunc extension, reasoning that the merits had been fully briefed and that the appellant would not prevail even if jurisdiction were restored.

Holding and Implications

The court held that it lacked subject matter jurisdiction to hear the appeal due to the appellant's failure to file a timely notice of appeal in compliance with Rule 4(a), Fed.R.App.P.

The appeal was therefore dismissed for want of jurisdiction. The court declined to remand for a nunc pro tunc extension because the appellant could not prevail on the merits. This decision directly affects the parties by terminating the appeal without consideration of the substantive issues and does not establish any new precedent beyond reaffirming strict compliance with appellate timing rules.

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MERRILL LYNCH, PIERCE, FENNER SMITH, INC., APPELLANT, v. LARRY O. KURTENBACH, APPELLEE.

VAN OOSTERHOUT, Senior Circuit Judge.

Merrill Lynch, Pierce, Fenner Smith, Inc., a commodities broker, brought this diversity action to recover balances allegedly due under a commodity account agreement. The trial court entered judgment for plaintiff in the amount of $8,158.75 which represents only a portion of the $14,781.25 allegedly due. Merrill Lynch seeks to appeal such final judgment. We dismiss the appeal for want of subject matter jurisdiction by reason of plaintiff's failure to file a timely notice of appeal.

Final judgment denying in part plaintiff's claim for relief was entered by Judge McManus on September 30, 1974. On October 11, 1974, plaintiff filed, pursuant to Rule 59(e), Fed.R.Civ.P., a "Motion to Correct Findings of Fact and Conclusions of Law and to Amend Judgment." Such motion was denied by the court by an Order entered November 6, 1974. Plaintiff's notice of appeal was filed December 9, 1974.

Plaintiff's motion under Rule 59(e), Fed.R.Civ.P., was served within the 10-day time period provided for in that Rule and was thus timely.

The jurisdictional issue was not raised by either party in the briefs. "[I]t is well-settled law that a court of appeals has only such jurisdiction as conferred upon it by law and that it is the duty of the court of appeals to examine and determine its jurisdiction, whether or not the jurisdictional issue is raised by the parties." United States v. June, 503 F.2d 442, 444-45 (8th Cir. 1974).

In a civil case where the United States or an officer or agency thereof is not a party, a party must file its notice of appeal with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from. Rule 4(a), Fed.R.App.P. Such timely filing is a jurisdictional prerequisite for subject matter appellate jurisdiction in the courts of appeal. United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); United States v. June, 503 F.2d 442, 443 (8th Cir. 1974). A timely motion under Rule 59(e) to alter or amend judgment tolls the time for filing a notice of appeal and the full time for appeal begins anew upon entry of an order entered pursuant to such motion. Rule 4(a), Fed.R.App.P. In this case the October 11 motion to amend judgment terminated the running of the 30-day appeal period until an order on the motion was entered on November 6, 1974, at which time the full 30-day period began to run again. Plaintiff's notice of appeal, filed December 9, 1974, was not timely because it was filed more than 30 days after the November 6th order was entered.

Plaintiff's notice of appeal was three days out of time. It is suggested that application of Rule 6(e), Fed.R.Civ.P., which provides for a three day extension to limitations periods under the Federal Rules of Civil Procedure when service is made by mail, would make plaintiff's notice of appeal timely. However, Rule 6(e) has no application when computing time for a notice of appeal. The time for appeal starts to run from entry of judgment. Rule 6(e) only applies to enlarge periods of time in which a party has to act after service of a notice by mail. 2 J. Moore, Federal Practice, ¶ 6.12 (2d ed. 1975); see Whipp v. Weinberger, 505 F.2d 800, 801 (6th Cir. 1974); cf. Goff v. Pfau, 418 F.2d 649, 654 (8th Cir. 1969).

Under 4(a), Fed.R.App.P., an appealing party may have an additional 30 days in which to file a notice of appeal "[u]pon a showing of excusable neglect. . . ." Plaintiff's notice of appeal falls within this additional 30 day period. A comparable rule is found in Rule 4(b), Fed.R.App.P., for appeals in criminal cases. In criminal cases in which the district court has filed a notice of appeal falling within the 30 day period of excusable neglect, our circuit has construed the action of the district court as an implied grant of additional time in which to take an appeal on the grounds of excusable neglect. United States v. Williams, 508 F.2d 410 (8th Cir. 1974). We are faced with the question of whether a similar rule should be applied to Rule 4(a). We hold that the difference in wording between the 4(a) and 4(b) excusable neglect provisions dictates a different rule in civil cases. Rule 4(a) provides in pertinent part:

Rule 4(b), Fed.R.App.P., provides in pertinent part:

. . . Upon a showing of excusable neglect the [district] court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period of not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate. (Emphasis added).

The record on appeal does not show that plaintiff, by motion or otherwise, made a showing of excusable neglect prior to the expiration of the initial 30-day period for filing notice of appeal. The emphasized provision in Rule 4(a), supra, clearly indicates that after the initial 30-day period for appeal has expired, a request for an extension under Rule 4(a) must be made by motion. Files v. Rockford, 440 F.2d 811, 816 (7th Cir. 1971); Way v. Gaffney, 434 F.2d 996, 997 (10th Cir. 1970); 9 J. Moore, Federal Practice ¶ 204.13[3] (2d ed. 1975). The record does not reflect that any such motion was filed with the district court within the extended 60 day period. Accordingly, we lack subject matter jurisdiction to consider the merits of this appeal.

On January 16, 1975, some 10 days after the absolute 60-day period had run, plaintiff moved in the district court under Rule 4(a) for an extension of time for filing its notice of appeal.

The power to extend the time for appeals is vested solely in the district court, and the court of appeals may not enlarge the time for filing a notice of appeal. Fed.R.App.P. Rule 26(b). Although plaintiff's notice of appeal was filed within the enlarged 60-day period, no determination of excusable neglect was moved for as required by Rule 4(a), or made by the district court within the 60-day period. The question is whether the district court has the power to sanction the late filing of the notice of appeal within the second 30-day period in the event a Rule 4(a) motion is made after the 60-day absolute period for filing any notice of appeal has expired. While notice of appeal was filed December 9, 1974, no application for extension of time for filing notice of appeal or showing of excusable neglect was filed with the district court until January 16, 1975. This was more than 60 days after the judgment from which this appeal is attempted had been entered.

In Way v. Gaffney, 434 F.2d 996, 997 (10th Cir. 1970), the court said:

Where a motion for an extension of time in which to appeal is not made within the initial thirty (30) days allowed by Rule 4(a), F.R.App.P., the trial court is without power to act without giving notice to all adverse parties. Cohen v. Plateau Natural Gas Co., 303 F.2d 273 (10th Cir. 1962), cert. denied, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64; Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3d Cir. 1962); Northumberland Mining Co. v. Standard Accident Insurance Co., 193 F.2d 951 (9th Cir. 1952); notes of the Advisory Committee on Rule 4(a), F.R.App.P. Accordingly, as in Cohen, supra, "[t]he trial court's expart[e] order extending the time for appeal was therefore void ab initio, and the appellant's subsequent notice of appeal was untimely and insufficient to vest this Court with jurisdiction of the appeal." 303 F.2d at 274.

See United States v. June, 503 F.2d 442 (8th Cir. 1974).

Plaintiff made no attempt to comply with the notice and excusable neglect provisions of Rule 4(a) until after a motion was filed to dismiss the appeal in this court for want of jurisdiction. Rule 4(a) places the burden on an appellant to comply with the excusable neglect and notice provisions of the Rule. Plaintiff's failure to do so has caused the parties needless delay and expense in briefing on appeal. No excuse is shown for failure to comply with the provisions of the Rule prior to attempting this appeal. To permit a delayed hearing on the excusable neglect issue upon the record in this case would not permit orderly and efficient administration of justice by the courts.

We hold that we are without jurisdiction to consider this appeal by reason of plaintiff's failure to comply with the requirements of Rule 4(a), Fed.R.App.P.

The appeal is dismissed for want of jurisdiction.

ORDER

On petition for rehearing, appellant suggests that in the interests of justice we should remand this case to the district court to permit that court to consider entering an order nunc pro tunc extending the time for appeal under F.R.A.P. 4(a). Other circuits have followed this procedure to avoid injustice in cases where the notice of appeal was filed prior to 60 days after the entry of the final appealable order. Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975) ( per curiam); Torockio v. Chamberlain Mfg. Co., 456 F.2d 1084, 1087 (3d Cir. 1972) ( en banc).

Assuming, arguendo, that we possess such discretionary power, we decline to exercise that discretion in this case. The merits have been fully briefed and argued and we are satisfied that appellant could not prevail if the jurisdictional defect were cured. Thus to remand this case to the district court for an order which might serve as a basis to invoke our appellate jurisdiction would serve no useful purpose.

Here, Merrill Lynch, plaintiff below, sued Kurtenbach for the balance of an indebtedness allegedly due on Kurtenbach's commodity trading account. The case turned upon the factual question of whether Kurtenbach had cancelled an open stop order to Merrill Lynch.^fn1

The trial court heard the evidence, weighed the credibility of the witnesses, and found that Merrill Lynch failed to establish that Kurtenbach had cancelled the stop order.

Merrill Lynch does not deny that the open stop order was placed on January 11. The trial court, after hearing the evidence and weighing the credibility of the witnesses, found that Merrill Lynch failed to establish that the stop order was cancelled. The court also considered the other items of account and fixed Kurtenbach's total liability at $8,158.75. We have reviewed the record in light of the parties' contentions and have concluded that if we had jurisdiction to reach the merits we could not say that the trial court's findings were clearly erroneous.

Therefore, we decline to exercise any prerogative we may have to remand this case to the district court for consideration of a motion to extend the time for appeal. The petition for rehearing is denied.