Roland Collard, and Mark Oakes, Bruce Oakes, Russell Parks, and Dale Larson v. United States

10 F.3d 718, 27 Fed. R. Serv. 3d 566, 1993 U.S. App. LEXIS 30166, 1993 WL 479716

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 23, 1993
• Docket: 92-4089
• Status: Published

Opinions

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-appellant Collard appeals the district court’s Fed.R.Civ.P. 41(b) dismissal for failure to prosecute and its denial of a new trial and amended judgment, Fed.R.Civ.P. 59. Plaintiff argues that the trial court abused its discretion in granting the motion to dismiss because Plaintiff failed to personally appear at trial. Because we conclude that the notice of appeal was not timely, we must dismiss for lack¹ of jurisdiction.

Background

Judgment in this ease was entered on January 8, 1992. Sua sponte, the trial court entered an amended judgment solely to award costs on January 14, 1992. The amended judgment purported to define the commencement of the ten-day period within which a Rule 59 motion could be filed as the date of the entry of the amended judgment, January 14, 1992, rather than January 8, 1992, the date of the original judgment. Aplt.App. at 40.

Plaintiff filed a Rule 59 motion for a new trial on January 24,1992, more than ten days from January 8, 1992, but within ten days of January 14. The trial court denied the motion on March 30, 1992 and Plaintiff filed a notice of appeal on May 29, 1992.

Concerned about the question of jurisdiction, we requested additional briefing on the issues of (1) whether the January 8, 1992 judgment on the merits was final under 28 U.S.C. § 1291 despite the fact that costs had not been awarded; and, (2) whether Plaintiffs January 24, 1992 post-trial motions were timely and thus tolled the time to file a notice of appeal. Plaintiff maintains that final judgmént was not entered until January 14, 1992, thus his appeal is timely.¹

Discussion

The question presented here is. whether a judgment amended solely to award costs is a “judgment” under Rule 59. Rule 54(a) defines “judgment” as “any order from which an appeal lies.” Fed.R.Civ.P. 54(a); Martinez v. Sullivan, 874 F.2d 751, 753 (10th Cir.1989).

A final judgment under § 1291 must “end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). The January 14 judgment states “that in all other respects [than costs] the Findings of Fact, Conclusions of Law and Judgment [filed] on January 7, 1992, should remain as signed and entered.... ” Aplt. App. at 39. The January 8, 1992 judgment thus ended the litigation on the merits.

Further, a cost award does not constitute litigation on the merits. Rule 58 states that “[e]ntry of the judgment shall not be delayed for the taxing of costs.” Fed.R.Civ.P. 58. The Supreme Court has stated that “a motion for costs ... does not seek ‘to alter or amend the judgment’ within the meaning of Rule 59(e). Instead, such 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.” Buchanan v. Stanships, Inc., 485 U.S. 265, 268-69, 108 S.Ct. 1130, 1131-32, 99 L.Ed.2d 289 (1988) (quoting White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 446, 102 S.Ct. 1162, 1163, 71 L.Ed.2d 325 (1982)). Cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 202-03, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988) (attorney’s fees as an element of costs are collateral).

A trial court may not extend, sua sponte or otherwise, the time for a party to file a Rule 59(e) motion when it enters an amended judgment solely to award costs. Rule 6(b) expressly prohibits a trial court from extending the time to file such a motion. Fed.R.Civ.P. 6(b). See also First Nationwide Bank v. Summer House Joint Venture, 902 F.2d 1197, 1199 & n. 2 (5th Cir.1990) (Rule 6 time limit not extended by filing of amended judgment).

Fed.R.App.R. 4(a)(1) requires a party to file the notice of appeal within 60 days of entry of judgment when the United States is a party. Because Plaintiffs Rule 59 motion was untimely and he did not file a notice of appeal until May 29, 1992, more than 60 days after the entry of the final judgment on January 8, 1992, we are without jurisdiction to hear his appeal. “[T]he taking of an appeal within the prescribed time is mandatory and jurisdictional.” Budinich, 486 U.S. at 203, 108 S.Ct. at 1722 (citing Fed.R.App.P. 2, 3(a), 4(a)(1), 26(b)). “A court lacks discretion to consider the merits of a case over which it is without jurisdiction... Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80, 101 S.Ct. 669, 676-77, 66 L.Ed.2d 571 (1981) (cited in Budinich, 486 U.S. at 203, 108 S.Ct. at 1722).

DISMISSED.

1 . The dissent posits that Mr. Collard adequately addresses the finality issue when he merely states that the January 14 judgment is the final judgment. Such a statement, unaccompanied by argument or authority, wholly fails to address the issue. To remedy Mr. Collard's inadequate response, the dissent constructs an argument for him. We decline to do so. See, e.g., American Airlines v. Christensen, 967 F.2d 410, 415 n. 8 (10th Cir. 1992); SEC v. Thomas, 965 F.2d 825, 826 (10th Cir.1992); Otero v. Buslee, 695 F.2d 1244, 1250 n. 7 (10th Cir.1982). "Courts do not decide what is not before them.” United States v. Welch, 928 F.2d 915, 918 (10th Cir.1991). The "unique circumstances” doctrine simply has not been raised by the parties.