Witasick v. Minnesota Mutual Life Ins. Co., 803 F.3d 184 (3d Cir. 2015). This was an insurance coverage case. It had a lengthy procedural history, one that implicated criminal as well as civil proceedings. The District Court had granted a motion to dismiss the case, on the grounds that a prior settlement agreement between the parties barred the claim. On plaintiffs’ appeal, Judge Nygaard wrote an opinion that applied the de novo standard of review that governs appeals of dismissals for failure to state a claim, but affirmed the District Court’s ruling.
Most of the panel’s opinion, however, was devoted to whether plaintiffs had properly invoked the court’s jurisdiction. And much of the controversy surrounding that issue arose from the fact that the District Court had not entered a separate judgment of dismissal, but had included the judgment in its written opinion.
Federal Rule of Appellate Procedure 4(a)(1) requires that a notice of appeal be filed “within 30 days after entry of the judgment or order appealed from.” Under Federal Rule of Civil Procedure 58, however, if an order that grants a motion to dismiss is not embodied in a separate document, the judgment is not considered to have been entered until “150 days have run from the entry in the civil docket.”
Here, the District Court’s opinion was filed on March 25, 2013, and Judge Nygaard concluded that that opinion was not a “separate document.” A “separate document” must satisfy three criteria: “(1) it must be self-contained and separate from the opinion, (2) it must note the relief granted, and (3) it must omit (or at least substantially omit) the trial court’s reasons for disposing of the claims.” The District Court’s order was not self-contained and its reasoning was included therein.
Judge Nygaard then offered a lengthy discussion of whether and when an electronic filing (“ECF”) notification could constitute a “separate document” that would trigger the time to file a notice of appeal. The ECF notice that defendants cited, which was dated March 25, 2013 and stated only “Civil Case Terminated,” was “too vague” to satisfy the requirement that a “separate document” note the relief granted. But Judge Nygaard made clear that some ECF notices can satisfy the “separate document” requirement and start the time for appeal clock running. Appellants and their counsel need to be aware of that possibility, which can be a trap for the unwary.
Since there was no “separate document,” the District Court’s judgment was not deemed entered until 150 days after the March 25, 2013 opinion, or August 23, 2013. Plaintiffs filed their notice of appeal (actually, it was titled “Contingent Notice of Appeal,” which furnished the next topic of the panel’s opinion) on Monday, September 23, 2013. Since thirty days from August 22 ran out on a weekend, the filing on the next Monday was timely.
Judge Nygaard then turned to whether plaintiffs’ “Contingent Notice of Appeal” constituted a valid notice of appeal under Rule 3 of the Federal Rules of Appellate Procedure. Plaintiffs had filed that document with the District Court on September 23, 2013, the last day on which they could appeal.
The “Contingent Notice of Appeal” asked the District Court to enter a “separate document,” but stated that if that request were denied, “this Contingent Notice of Appeal will then become the Plaintiffs’ formal Notice of Appeal ….” But the document also said that plaintiffs did not intend to divest the District Court of jurisdiction (“particularly given the various outstanding motions which have not yet been ruled upon,” including a July 2013 motion by plaintiffs for entry of a “separate document”), which a notice of appeal, by definition, does.
Rule 3 is to be liberally construed. Applying that standard, Judge Nygaard concluded that plaintiffs “albeit awkwardly, ha[d] indicated an intention to appeal,” and that the form of the document was sufficient as a “functional equivalent” of a notice of appeal. The panel “strongly emphasize[d], however, that the use of a contingent notice of appeal is not recommended when attempting to concretely establish appellate jurisdiction.” Another useful tip for appellants and their attorneys.
Finally, Judge Nygaard addressed defendants’ argument that only the March 25, 2013 judgment, not any earlier ruling in the saga between these parties, because the notice of appeal specified only the March 25, 2013 ruling as being appealed. Judge Nygaard agreed. “If an appeal is taken only from a specified judgment, we do not acquire jurisdiction to review other judgments not specified or ‘fairly … inferred’ by the notice,”