Dated versus Filed versus Entered

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In federal court, several important (and jurisdictional) post-trial deadlines are keyed off of the “entry of judgment.” For example, a motion for a new trial “must be filed no later than 28 days after the entry of judgment,” as must a motion to alter or amend a judgment. See Fed. R. Civ. P. 59. And a notice of appeal “must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.” See Fed. R. App. P. 4. Even though Fed. R. App. P. 4 and Fed. R. Civ. P. 58 go out of their way to explain what it means for an item to be “entered,” there can still be confusion when an order granting summary judgment is dated differently from the separate document entering judgment — or worse, when the the docket reflects that the item is “signed” one day, “filed” another day, and the docket entry was made on yet a third day.

The Judgment is a Separate Document

Three important practice tips. First, it is the entry of the separate judgment, not the date of the memorandum or order, that controls “entry of judgment” where the order is one that requires a separate document under rule 58. In re Southeast Bank Corp., 97 F.3d 476, 478 (11th Cir. 1996). In Southeast Bank, the judgment was entered on one date, and the opinion was docketed three days later. The Eleventh Circuit stated that the date of the entry of the final judgment – not the entry of a trial court’s memorandum opinion in support of summary judgment – was the operative date for determining the timeliness of a motion to alter or amend the judgment, and therefore held that the trial court did not have jurisdiction to entertain such a motion that was filed the appropriate number of days after the memorandum opinion was filed. So make sure you are looking at the right document when calculating your deadlines.

Entry is the Key

Second, the date of entry of the judgment is controlling — not the date it is file stamped, listed as filed, or signed. Jones v. Gann, 703 F.2d 513 (11th Cir. 1983)(“The time for filing a notice of appeal begins to run not on the date that the judgment is filed but on the date the judgment is actually entered on the docket.”)(emphasis added). As the Southern District of Florida has explained, “an entry is not effective until it is actually placed on the docket sheet.” National Sav. Bank of Albany v. Jefferson Bank, 127 F.R.D. 218 (S.D. Fla. 1989). While ideally “the entry date would always coincide with the file stamp date, thereby automatically notifying the parties of the entry date and obviating the need for the parties to inquire as to the entry date,” that is not always the case. Thus, for purposes of calculating deadlines, “an order is ‘entered’ not when it is signed by the judge, nor when it is ‘filed’ (i.e., file stamped), but rather when it is actually recorded on the docket sheet.” Id.

No mailing days

Third, the operative phrase is “entry of judgment,” not service. It doesn’t matter if you were never served the judgment, many courts will charge you with knowledge of the docket. And because it is “entry”, not “service” the deadlines are not affected by the three day grace period for actions “within a specified time after service” allowe by Fed. R. Civ. P. 6(d).

The moral of the story is that one must calculate post trial deadlines very, very carefully. When in doubt, file early.

Jurisdiction and Extraordinary Writs

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Sometimes, you can win the battle and lose the war. So it can be with jurisdiction. Even if you are correct that there is no jurisdiction over an appeal in the Florida intermediate appellate courts, the Court still has the discretion to treat an appeal as a request for an extraordinary writ.

And that’s exactly what the Second District Court of Appeal did to late last month. (Full disclosure, I was attorney of record for the Appellee on this case). On the eve of a hearing on the Defendants’ summary judgment motion, the Plaintiff filed a notice of voluntary dismissal. The Defendant asked the trial court to strike the notice of voluntary dismissal, arguing that it had attained rights in the case precluding voluntary dismissal and fraud on the court. The trial court did so, and the plaintiff appealed.

The problem, however, was that the order they were attempting to appeal was neither a final appealable order nor an order available for interlocutory appeal. And I elloquently told the court so.

The Second DCA knew I was right:

We briefly address this court’s jurisdiction to consider this appeal. Service Experts’ notice of appeal was filed pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). The Northside defendants have argued that this court does not have jurisdiction under rule 9.130(a)(5) because that rule applies to orders entered on motions for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540. They state that their motion to strike the notice of voluntary dismissal was not made pursuant to rule 1.540 because that rule applies to final judgments, decrees, orders, or proceedings, and the voluntary dismissal they sought to set aside was not a final judgment, decree, or order. We agree with their procedural assessment.

However, the Court dug deep and created a remedy for the Plaintiff by converting the appeal to a writ of prohibition, pursuant to Rule 9.040(c):

Based on the facts of this case, appellate jurisdiction does not neatly fall within the confines of rule 9.130(a)(5). Nevertheless, Florida Rule of Appellate Procedure 9.040(c) provides that when a party seeks an improper remedy, “the cause shall be treated as if the proper remedy had been sought.” Here, a writ of prohibition is appropriate “to forestall an impending injury where no other appropriate and adequate legal remedy exists and only when damage is likely to follow.” City of Ocala v. Gard, 988 So.2d 1281, 1283 (Fla. 5th DCA 2008). It is “the appropriate remedy to prevent an inferior tribunal from acting in excess of jurisdiction” where there is no right to remedy the wrong at issue by direct appeal. Id. at 1283. Because we conclude that the trial court’s order was in excess of its jurisdiction, we have appellate jurisdiction to “forestall an impending injury”-forced litigation after the plaintiff’s notice of voluntary dismissal was filed. As there is no other adequate remedy, we convert this appeal to a writ of prohibition.

Now, the rules geek in me does, in fact, feel vindicated that I was right about the jurisdiction issue. But that’s not much comfort to the client, who had a favorable ruling overturned.

A request for clarification is pending on the appeal. The case is Service Experts, LLC v. Northside Air Conditioning & Elec. Service, Inc., No. 2D09-5416, ___ So.3d ____ (September 22, 2010) [.pdf].

All Digital in the First DCA

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Florida District Courts of Appeal Map Today’s the day that electronic filing by the clerks of court and court reporters becomes mandatory. As previously discussed, this means that the clerks of court and agencies within the First DCA — which encompases the 1st, 2nd, 3rd, 8th and 14th Circuits — now must transmit their certified copies of the Notice of Appeal and more the record electronically. The Notice of Appeal procedure isn’t too onerous, but I don’t look forward to the delay I envision as the trial court clerks get used to preparing an electronic record on appeal. Great job to the panhandle for leading the way into the 21st century for the Florida intermediate appellate courts.