Wesco Products Co. And Donald Horwitz v. Alloy Automotive Co., and Continental Illinois National Bank & Trust Co.

880 F.2d 981

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 6, 1989
• Docket: 88-2832
• Status: Published

Opinions

FLAUM, Circuit Judge.

Alloy Automotive Company appeals from a district court decision vacating a prior order of the bankruptcy court under Rule 60 of the Federal Rules of Civil Procedure. For the reasons discussed below, we reverse.

I.

In October 1980, appellee Wesco Products Corporation filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. The case was docketed in the bankruptcy court for the Northern District of Illinois and assigned the docket number 80 B 13232. Subsequently, in September 1981, Wesco filed an adversary proceeding against Alloy Automotive Company, a prospective purchaser of Wesco’s assets, in the same court. That case was assigned the docket number 81 A 3141. 90 B.R. 331 (N.D.Ill.1988).

Over the next several years, Wesco failed to pursue either the Chapter 11 reorganization or the adversary proceeding, although its sole shareholder, Donald Hor-witz, filed a related suit against Alloy in the district court. In January, 1985, bankruptcy judge Robert Eisen, acting upon the trustee’s recommendation, dismissed the Chapter 11 petition. In the process, he made the following comment about the adversary proceeding which was entered on the docket sheet for case number 80 B 13232: “The adversary proceeding is rendered moot by the dismissal of the bankruptcy case and is therefore adjourned sine die.” The meaning of this cryptic statement is open to dispute. Both Judge Wed-off, the bankruptcy judge who entertained Wesco’s Rule 60 motion,¹ and the district court concluded that this statement manifested an intention to dismiss the adversary proceeding without prejudice along with the Chapter 11 petition although another plausible interpretation is that Judge Eisen merely intended to postpone a final decision on the merits of the adversary proceeding until a later date — Judge Eisen after all did not use the phrase sine die in dismissing the Chapter 11 petition. It is undisputed, however, that no order of dismissal was entered on the docket for the adversary proceeding as required by Bankruptcy Rules 5003 and 9021. Consequently, there was no final judgment as to case number 81 A 3141. See In re American Precision Vibrator Company, 863 F.2d 428, 429 (5th Cir.1989).

After the Chapter 11 petition was dismissed, Wesco joined Horwitz’ suit in the district court. In August 1986, some nineteen months after the events of January 1985, Judge Eisen notified Wesco and Alloy that a status hearing on case number 81 A 3141, the adversary proceeding in the bankruptcy court, had been scheduled for September 2, 1986, “to determine whether the adversary proceeding should be adjourned without further date.” The court stated that a failure to appear would result in a dismissal of the adversary proceeding with leave to reinstate. Despite this communication, neither party appeared at the September 2 status hearing. As a result, Judge Eisen entered an order dismissing the adversary proceeding for lack of prosecution.

In January, 1988, Wesco, concerned about the possible res judicata effect of the September 2 order on the ongoing district court proceedings,² filed a motion to vacate the order in the bankruptcy court under Bankruptcy Rule 9024, the Bankruptcy Code’s counterpart to Federal Rule of Civil Procedure 60. Judge Wedoff, after noting that the usual practice in the bankruptcy courts is to dismiss all related proceedings along with the bankruptcy ease, see In re Smith, 866 F.2d 576, 580 (3rd Cir.1989) and that the term without date contained in the August communication to the parties was the English equivalent of the phrase sine die, determined that Judge Eisen had intended to dismiss the adversary proceeding along with the Chapter 11 petition in January, 1985. In addition, he found that the September 2, 1986 status hearing which culminated in a dismissal of the adversary proceeding for lack of prosecution would never have been held had the sine die comment been entered on the appropriate docket sheet. Accordingly, Judge Wedoff vacated the September 2, order and entered a new order dismissing the adversary proceeding without prejudice. Judge Wedoff based this ruling on both Rule 60(a) and Rule 60(b)(6). On appeal, the district court³ affirmed Judge Wedoff’s decision while disagreeing with part of his reasoning. The district court held that Rule 60(a) was not a proper vehicle for vacating the September 2, 1986 order but agreed with the bankruptcy judge that Rule 60(b)(6) relief was appropriate. Alloy appeals from this decision.

II.

Rule 60 of the Federal Rules of Civil Procedure regulates the procedures for obtaining relief from final judgments. C. Wright & A. Miller, Federal Practice and Procedure § 2851 at 140. (2nd ed. 1983). The provision itself is divided into two sections. Rule 60(a) provides for relief from final judgments infected by clerical error. Rule 60(b) contains five clauses delineating specific grounds for obtaining relief as well as a catchall clause in Rule 60(b)(6). Motions to correct clerical errors may be brought at any time prior to the docketing of an appeal. Motions under Rule 60(b) are subject to varying time limitations. Thus, motions alleging grounds for relief delineated in the first three clauses of Rule 60(b) must be brought within one year after the entry of the final judgment. In contrast, motions brought under the last three clauses are not subject to an express time limitation but must only be filed within a reasonable time of the entry of judgment.

Inherent in the structure of Rule 60(b) is the principle that the first three clauses and the catchall clause are mutually exclusive. See Waggoner v. McGray, 743 F.2d 643, 645 (9th Cir.1984). See also J. Moore, Moore’s Federal Practice, ¶ 60.27 at 60-266. Thus, if the asserted grounds for relief fall within the terms of the first three clauses of Rule 60(b), relief under the catchall provision is not available. The rationale underlying this principle is that the one year time limit applicable to the first three clauses of Rule 60(b) would be meaningless if relief was also available under the catchall provision. See In re Met-L-Wood Corporation, 861 F.2d 1012, 1018 (7th Cir.1988), cert. den. Gekas v. Pipin, — U.S. -, 109 S.Ct. 1642, 104 L.Ed.2d 157 (1989).

The problem presented by this case, therefore, is characterizing the nature of Wesco’s claim for relief. As noted above, the bankruptcy judge held that Wesco’s claim fell under the rubric of both Rule 60(a) and Rule 60(b)(6). The district court, however, rejected this view and held that relief was only available under Rule 60(b)(6).

The divergence in views between the bankruptcy and district judges reflects the difficulty courts often encounter in determining whether motions are brought to correct clerical errors. In this circuit, we have identified the relevant distinction as being between changes that implement the result intended by the court at the time the order was entered and changes that alter the original meaning to correct a legal or factual error. See United States v. Griffin, 782 F.2d 1393, 1397 (7th Cir.1986). Thus, “[i]f the flaw lies in the translation of the original meaning to the judgment, then Rule 60(a) allows a correction; if the judgment captures the original meaning but is infected by error, [ ] the parties must seek another source of authority to correct the mistake.” Id. at 1396-97.

Evaluated under the Griffin standard, it is apparent that Wesco’s claim for relief does not fall within the terms of Rule 60(a). Wesco does not claim that the September 2, 1986 dismissal for lack of prosecution did not reflect the bankruptcy court’s intentions at the time it was entered. Rather, Wesco objects to the manner in which the order was entered i.e. for lack of prosecution as opposed to with leave to reinstate. The asserted error is not in the clerk’s transcription but in the bankruptcy judge’s decision, a ground for relief not contained in Rule 60(a). Consequently, Wesco must seek another source of authority to vacate the September 2, 1986 order.⁴

One such source might be Rule 60(b)(4) which provides for relief from void judgments. Both the bankruptcy court and the district judge concluded that relief under Rule 60(b)(4) was not available to the plaintiff. We agree.

A void judgment for purposes of Rule 60(b)(4) is generally defined as a judgment entered by a court without jurisdiction or in contravention of due process of law. See Margoles v. Johns, 660 F.2d 291, 295 (7th Cir.1981), cert. den. 455 U.S. 909, 102 S.Ct. 1256, 71 L.Ed.2d 447 (1982). The September 2, 1986 order was clearly not void within the meaning of Rule 60(b)(4). There is no suggestion that the order itself was inconsistent with due process. In addition, the bankruptcy judge had jurisdiction over the adversary proceeding on that date since no order of dismissal had been entered on the adversary docket as required by Bankruptcy Rules 5003 and 9021. Consequently, Rule 60(b)(4) relief was not available to Wesco in this case.

There is yet another possibility, one not considered by either court below — Rule 60(b)(1). Rule 60(b)(1) provides for relief from final judgments that are the product of mistake, inadvertence, surprise or excusable neglect. This provision applies to errors by judicial officers as well as parties. See Buggs v. Elgin, Joliet & Eastern Ry. Co., 852 F.2d 318, 322 (7th Cir.1988); Bank of California v. Arthur Anderson & Co., 709 F.2d 1174, 1176 (7th Cir.1983).

In our view, Wesco’s claim for relief falls squarely within the ambit of Rule 60(b)(1). Wesco’s motion alleges that the decision to dismiss the adversary proceeding for lack of prosecution stemmed from Judge Eisen’s lack of access to information about the events of January, 1985 and requested that the September 2, 1986 order be modified to conform to his apparent intention in 1985. Thus, Wesco’s motion requested that the apparent dismissal with prejudice be modified to read without prejudice. This is precisely the type of claim, however, that falls under Rule 60(b)(1). See Bank of California v. Andersen, 709 F.2d 1174, 1176-77 (7th Cir.1983).

In sum, we find that Wesco’s motion asserted grounds for relief contained in Rule 60(b)(1). Consequently, its motion is subject to the one year time limitation applicable to motions under that provision. Unfortunately for Wesco, its motion was not brought within one year of the September 2, 1986 order. As the one year time limit is jurisdictional and may not be extended in any event, Ackermann v. United States, 340 U.S. 193, 197, 71 S.Ct. 209, 211, 95 L.Ed. 207 (1950), we conclude that Judge Wedoff lacked jurisdiction to consider the merits of Wesco’s motion and therefore reverse the district court’s decision vacating Judge Eisen’s September 2, 1986 order.⁵

Reversed.

1 . Judge Eisen had retired in the interval between the entry of the challenged order and the filing of Wesco's Rule 60 motion.

2 . Alloy had discovered the September 2, 1986 order during a search of the bankruptcy docket and, in support of its motion for summary judgment in the district court, had argued that the order had res judicata effect.

3 . For reasons not explained to the panel, Alloy’s appeal was not considered by the district judge who is presently evaluating its res judicata argument.

4 . This decision does not conflict with the Fifth Circuit's recent division in In re American Precision Vibrator Company, 863 F.2d 428, (5th Cir.1989). In that case, a creditor had filed a motion to dismiss the debtor’s bankruptcy petition. The debtor filed an opposition to this motion within the period prescribed by local law but the opposition was not docketed until later due to clerical error. The bankruptcy judge dismissed the petition with prejudice on the ground that the debtor had not filed an opposition within the requisite time period. Subsequently, the bankruptcy judge issued an order denying the motion to dismiss but curiously refused to vacate his prior order granting the motion to dismiss. The Fifth Circuit vacated the dismissal order under Rule 60(a) as the product of a clerical error. The court, however, cognizant of the impact that its logic might have on the finality of judgments — corrections under Rule 60(a) may be made at any time and do not require a motion by a party — limited its decision to the unusual facts of the case before it where the erroneous decision necessarily resulted from the clerical error. In particular, the court emphasized that a more attenuated connection between clerical mistake and consequence would render its decision inapplicable. Id. at 432. In the present case, there is not a direct connection between the clerical error and dismissal with prejudice for it was possible that Judge Eisen would have dismissed the adversary proceeding for want of prosecution even if he had been aware of his previous comment.

5 . The majority finds itself in disagreement with the dissenting opinion in several respects. First unlike the cases cited by the dissent, this case does not involve a claim that the challenged order was the product of a judge’s affirmative misrepresentation. Rather, Wesco’s claim is that the September 2, 1986 order stemmed from some error in January, 1985.

Second, the dissent’s statement that the district court showed no hesitation in articulating and applying the controlling legal principle is not supported by the record. The guiding principle in this case i.e. that 60(b)(1) and 60(b)(6) are mutually exclusive contains a corollary — a court must look to 60(b)(1) before it even considers 60(b)(6). The district court in this case noted Alloy’s 60(b)(1) argument then proceeded not to address it. Even assuming, however, that the district court can be said to have deferred to the bankruptcy judge’s 60(b)( 1) — 60(b)(6) decision, this deference was not warranted for the bankruptcy judge’s "analysis" of the 60(b)(1) question consisted of the following statement: "To the extent that Wesco makes any claim under Rule 60(b)(1) ... its too late. Under [the] terms of Rule 60(b), claims of that sort have to be brought within one year and the motion was not brought until January of this year ...” It is difficult to conclude that this statement reflects an understanding of the tension between 60(b)(1) and 60(b)(6).

Third, the dissent argues that by failing to defer to a lower court’s characterization of a claim under Rule 60, we will destabilize institutional relationships. Initially, we note that an appellate court is not required to give deference to a lower court’s decision on an issue of this type. Cf. Klingman v. Levinson, 877 F.2d 1357, 1360 (7th Cir.1989) (recharacterizing a Rule 60(b)(6) motion as a Rule 60(a) motion without giving any deference to the district court’s characterization). Moreover, even if this issue was reviewed under an abuse of discretion standard, we would reach the same result. As noted above, there was no meaningful analysis of Rule 60(b)(1) below. Consequently, there is no decision to which we can defer. Finally, we find it difficult to imagine how a decision that merely reaffirms and applies a principle that has been the law in this circuit since 1972, i.e. that 60(b)(1) and 60(b)(6) are mutually exclusive, see Bershad v. McDonough, 469 F.2d 1333, 1336 n. 5 (7th Cir.1972) will engender institutional damage.

Fourth, the dissent charges the majority with producing an unjust result. Res judicata however, is not an inflexible principle, see C. Wright & A. Miller, Federal Practice and Procedure, § 4415 (2d ed. 1981), and Wesco is not precluded from arguing that an exception to the doctrine should apply. In fact, the dissent's concern about the injustice produced by our decision is somewhat ironic in view of Wesco’s own view of the merits of a potential res judicata argument. In its submission to Judge Wedoff, Wesco made the following comment about this argument: "[Although Wesco sees no merit to such argument, Wesco believes the simplest way to prevent more ink being spilled on such an issue in the District Court is to request the Bankruptcy Court to rectify the record."