Civil Procedure – appeal

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure – appeal — final judgment

A Rule 77(d) notification does not comply with Rule 58.

“The entry was required by Rule 77(d), not as a judgment or an order but simply as a notice. It does not comply with Rule 58; its purpose is different; and when treated as the judgment it can confuse. The recipient might inquire and if so discover that no document constituting a judgment separate from the judge’s opinion had been entered and might wonder therefore whether the 30-day period for filing an appeal had yet begun to run. The clerk could without difficulty have complied with Rule 58, as all that compliance requires is filling out form AO 450, or Forms 70 or 71 if he prefers. We should not allow a Rule 77(d) notification to do service for a Rule 58 judgment. Our cases that allow that should be overruled.”

“Rule 58 requires not only a separate document but also, at least when the judgment denies all relief, as in this case, that the separate document be signed by the court clerk. Fed. R. Civ. P. 58(b)(1)(C). The docket entry in question in this case has no line for a signature, no signature, and not even initials, which would suffice if, unlike the situation in Carter v. Beverly Hills Savings & Loan Association, 884 F.2d 1186, 1189–90 (9th Cir. 1989), the initials were those of the clerk. So the docket entry violates Rule 58, and therefore the judgment date was 150 days after the district court’s decision. The appeal is therefore timely and should proceed to briefing on the merits of the district court’s decisions to dismiss Brown’s complaint and to deny her post-trial motion under Fed. R. App. P. 4(a)(4)(A)(vi), (B) for relief, under Rule 60 of the civil rules, from the dismissal of the complaint.”

So Ordered.

13-1781 Brown v. Fifth Third Bank

Appeal from the United States District Court for the Northern District of Illinois, Holderman, J., Posner, J.