Lentomyynti Oy v. Medivac, Inc.

997 F.2d 364, 1993 WL 240789
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 1, 1993
DocketNos. 92-2150 & 93-1371
StatusPublished
Cited by29 cases

This text of 997 F.2d 364 (Lentomyynti Oy v. Medivac, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lentomyynti Oy v. Medivac, Inc., 997 F.2d 364, 1993 WL 240789 (7th Cir. 1993).

Opinion

KANNE, Circuit Judge.

This consolidated appeal challenges both the judgment on the merits and the post-judgment award of costs. Having concluded that we have jurisdiction over the appeal on the merits, we affirm the judgment of the district court entered in favor of the defendants. However, we remand the ease for a new costs award.

I. Jurisdiction

The defendants contend that because the plaintiffs’ appeal of the merits is untimely, we lack jurisdiction to hear it.1 We do not have jurisdiction to hear an appeal unless an appellant files a timely notice of appeal. Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 957 F.2d 515, 517 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 91, 121 L.Ed.2d 53 (1992); Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1561 (7th Cir.1990). Federal Rule of Appellate Procedure 4(a)(4) states that a notice of appeal filed before the district court disposes of a Federal Rule of Civil Procedure 59(e) motion “shall have no effect.” Therefore, if a valid Rule 59(e) motion was pending before the district court when this appeal was filed, we do not have jurisdiction over the plaintiffs’ appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). According to the defendants, this is exactly the situation before us.

Judgment for the defendants, based on a jury verdict, was entered on April 16, 1992.2 On April 27, 1992, the defendants filed a “Motion to Amend Judgment.”3 In this document, the defendants moved the district court, pursuant to Rule 59(e), to alter the April 16th judgment to include, “in addition to those awarded under 54(d), any and all costs, expenses, and fees allowable under FRCP Rule 68.”4 This motion was still pending when the plaintiffs filed their notice of appeal to this court on May 14, 1992.

The events described require us to decide whether a post-judgment motion to recover Rule 68 costs is properly considered a Rule 59(e) motion. We start with the premise that merely titling a document a Rule 59(e) motion does not make it one. Lac Du Flambeau Indians, 957 F.2d at 517; Charles v. Daley, 799 F.2d 343 (7th Cir.1986). Genuine Rule 59(e) motions are used to request “reconsideration of matters properly encompassed in a decision on the merits.” White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 451, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982). Thus, we must examine the request made in the document and decide whether its disposition would truly alter the merits of the judgment or whether it addresses a matter wholly collateral to the judgment on the merits.

While the Supreme Court has not decided whether a motion for Rule 68 costs is a valid Rule 59(e) motion, other cases by the Court [367]*367provide significant guidance. In Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988), judgment for the defendants was entered following a bench trial; the judgment made no mention of costs. The following day the plaintiffs filed a notice of appeal. Two days later, the defendants filed a document asking that the judgment be changed to reflect that the defendants were “ ‘entitled to recover taxable costs’ the document was titled “Motion to Alter or Amend Judgment” and specifically referred to Rule 59(e). Id. at 266, 108 S.Ct. at 1130-31. The Court held that the motion was a Rule 54(d) motion for costs, not a Rule 59(e) motion, because “a request for costs raises issues wholly collateral to the judgment in the main cause of action, issues to which Rule 59(e) was not intended to apply.” Id. at 268-69, 108 S.Ct. at 1132.

In White v. New Hampshire Department of Employment Security, the Court held that post-judgment motions for attorneys’ fees were not proper Rule 59(e) motions because they raised an issue collateral to a decision on the merits of a case. 455 U.S. at 451,102 S.Ct. at 1166. In a related case, the Court held that a decision was final under 28 U.S.C. § 1291 even though an unresolved issue of attorneys’ fees remained. Budinich v. Becton Dickinson and Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). The Budinich court specifically noted that questions of attorneys’ fees should not delay an appeal because they indisputedly are not part of the case’s merits, but instead are the equivalent of costs “which are not generally treated as part of the merits judgment.” Id. at 200, 108 S.Ct. at 1721.

Most recently, the Court reaffirmed and distinguished the foregoing cases in Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). In Oster-neck, the Court held that motions for prejudgment interest were proper Rule 59(e) motions because unlike “motions for costs, a motion for discretionary prejudgment interest does not ‘rais[e] issues wholly collateral to the judgment in the main cause of action.’ ” Id. at 175, 109 S.Ct. at 991 (quoting Buchanan, 485 U.S. at 268, 108 S.Ct. at 1132). The Court explained that because district courts are- required- to examine matters involved in the underlying action in order to decide prejudgment interest, it is appropriate to characterize such motions as Rule 59(e) motions. Id., 489 U.S. at 176, 109 S.Ct. at 991.

In addition to Supreme Court precedent, our research reveals that two other circuit courts have addressed the precise issue before us, each reaching a different conclusion. In Munden v. Ultra-Alaska Associates, 849 F.2d 383, 385 (9th Cir.1988), the defendants filed a motion entitled “Motion to Amend Form of Judgment” in which they asked the court to apply Rule 68 and relieve them of the judgment order to pay the plaintiffs costs. Despite the fact that the defendants did not even mention Rule 59(e) in their original motion, the Ninth Circuit held that the document was a proper Rule 59(e) motion, and thus the plaintiffs notice of appeal was premature. Id. The court reasoned:

The district judge deliberated over a new issue raised by the motion (whether to include post-offer interest in determining if the offer of judgment exceeded [the plaintiffs] actual recovery). The defendant’s motion sought substantive, not merely ministerial or clerical, relief.

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Bluebook (online)
997 F.2d 364, 1993 WL 240789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lentomyynti-oy-v-medivac-inc-ca7-1993.