Adam G. Nunez v. The Superior Oil Company

535 F.2d 324, 1976 U.S. App. LEXIS 7960

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 19, 1976
• Docket: 76-1310
• Status: Published

Opinion

PER CURIAM:

In this case the district court rendered a “ruling” granting defendant-appellee’s motion for summary judgment. However, there was a failure to comply with the mechanical requirement of Rule 58 of the Federal Rules of Civil Procedure that the judgment be “set forth on a separate document.” Hence, this appeal must be dismissed. Taylor v. Sterrett, 527 F.2d 856 (5 Cir. 1976). See United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973).

Should a new appeal be taken after compliance with Rule 58, complete rebriefing is not required. We suggest, however, that the parties may wish to file succinct supplemental briefs on the question whether appellee’s defense concerning failure to give notice of default is one that should have been set forth affirmatively under Rule 8(c) of the Federal Rules of Civil Procedure and, if so, whether this defense was set forth affirmatively. 1

APPEAL DISMISSED.

1 . See Record, v.1 at 197 and 199. But see Brief for Appellee at 52.