United States v. 2007-02-05 | 05-15360 | STEPHANIE-CARDONA LL VSMITH'S FOOD | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 STEPHANIE-CARDONA LLC,
Plaintiff-Appellant, No. 05-15360
v.  D.C. No.
SMITH’S FOOD AND DRUG CENTERS, CV-02-00783-HDM
INC.,
Defendant-Appellee. 
 STEPHANIE-CARDONA LLC,
Plaintiff-Appellee, No. 05-15543
v. D.C. No.
 CV-02-0783-HDMSMITH’S FOOD AND DRUG CENTERS,
INC., OPINION
Defendant-Appellant. 
Appeals from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
January 9, 2007—San Francisco, California
Filed February 6, 2007
Before: Alfred T. Goodwin, A. Wallace Tashima, and
William A. Fletcher, Circuit Judges.
Opinion by Judge Goodwin
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COUNSEL
Gordon H. Warren, Kirk B. Lenhard, Jones Vargas, Las
Vegas, Nevada, for the plaintiff-appellant-cross-appellee.
James D. Kilroy, Snell & Wilmer, Denver, Colorado, for the
defendant-appellee-cross-appellant.
OPINION
GOODWIN, Circuit Judge:
This appeal and cross-appeal grew out of a contract dispute
between Stephanie-Cardona, LLC (“Stephanie-Cardona”), a
real estate development firm, and Smith’s Food & Drug Cen-
ters, Inc. (“Smith’s”), a grocery store operator. Stephanie-
Cardona appeals a summary judgment in favor of Smith’s,
and the cross-appeal challenges the denial of Smith’s request
for attorney’s fees and costs. Because Stephanie-Cardona’s
notice of appeal was untimely, we dismiss both the appeal and
the cross-appeal for lack of subject matter jurisdiction.
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I. Procedural History
Stephanie-Cardona sold a lot in a shopping center develop-
ment to Smith’s, with the expectation that Smith’s would
build and operate an anchor grocery store on the site. After
spending over $3 million, Smith’s abandoned the grocery
store project as a business decision. Stephanie-Cardona sued,
alleging that Smith’s withdrawal was a breach of contract that
forced Stephanie-Cardona into bankruptcy.
Stephanie-Cardona’s action filed in Nevada state court was
removed on diversity grounds to federal court in June 2002.
Stephanie-Cardona’s first amended complaint alleged six
causes of action sounding in contract, unjust enrichment, and
negligence. On October 6, 2003, the district court entered an
order granting summary judgment for Smith’s on all causes of
action except for a claim relating to maintenance expenses.
On May 28, 2004, the parties stipulated that Smith’s had paid
$72,167.81 to settle the maintenance expenses claim, and that
the parties agreed to dismiss the remaining causes of action
with prejudice. The stipulation and order recited that “given
the Court’s October 6, 2003 Order and this Stipulation and
Order for Dismissal, this case is now ripe for entry of final
judgment.” On June 14, 2004, the district judge signed the
stipulated order, and it was entered in the district court’s civil
docket on June 16, 2004. Smith’s filed a motion for attorney’s
fees and costs two days later on June 18, 2004.
On December 20, 2004, the district court entered an order
denying the fees motion. On January 25, 2005, the district
court docketed a clerk’s order entitled “Judgment in a Civil
Case,” which stated that “this matter is dismissed in its
entirety, with prejudice.” Stephanie-Cardona then filed a
notice of appeal on February 22, 2005. Smith’s followed with
a notice of cross-appeal fifteen days later on March 9, 2005.
Each party now argues that the other’s notice of appeal was
untimely.
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II. Timely Notice of Appeal
[1] A timely notice of appeal is a non-waivable jurisdic-
tional requirement. Disabled Rights Action Comm. v. Las
Vegas Events, Inc., 375 F.3d 861, 869 (9th Cir. 2004). Fed.
R. App. P. 4 and Fed. R. Civ. P. 58 set forth the framework
for determining when the time to appeal begins to run. Sub-
ject to some exceptions, Fed. R. App. P. 4(a)(1)(A) requires
a notice of appeal to be filed within 30 days “after the . . .
order appealed from is entered.” In turn, Fed. R. App. P.
4(a)(7)(A) and Fed. R. Civ. P. 58(b) define what it means for
a final order or judgment to be entered. Although Fed. R. Civ.
P. 58(a)(1) requires every judgment to be set forth on a sepa-
rate document,1 judgment may be deemed entered even if the
district court fails to comply with that requirement. As Fed.
R. App. P. 4(a)(7)(A) states:
A judgment or order is entered for purposes of this
Rule 4(a):
. . .
(ii) if Federal Rule of Civil Procedure 58(a)(1)
requires a separate document, when the judgment or
order is entered in the civil docket under Federal
Rule of Civil Procedure 79(a) and when the earlier
of these events occurs: the judgment or order is set
forth on a separate document, or 150 days have run
from entry of the judgment or order in the civil
docket under Federal Rule of Civil Procedure 79(a).
See also Fed. R. Civ. P. 58(b)(2) (same). Thus, even if the dis-
trict court does not set forth the judgment on a separate docu-
ment, an appealable final order is considered entered when
1Notwithstanding exceptions that do not apply here, Fed. R. Civ. P.
58(a)(1) provides that “every judgment and amended judgment must be set
forth on a separate document.”
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150 days have run from the time the final order is docketed.
Under Fed. R. App. P. 4(a)(1)(A), an appellant must then file
a notice of appeal within 30 days after the end of that 150-day
period.
[2] The 150-day rule for automatic entry of judgment was
added to the rules of civil and appellate procedure in 2002.2
We have applied it in three published decisions. In Ford v.
MCI Commc’n Corp. Health & Welfare Plan, 399 F.3d 1076
(9th Cir. 2005), the district court granted summary judgment
for the defendant by a minute order, which was docketed on
November 18, 2002. Id. at 1078. The district did not set forth
the judgment on a separate document as required by Fed. R.
Civ. P. 58(a)(1). Id. at 1080. As we explained, “[b]ecause no
separate document was filed, judgment was entered 150 days
after November 18, 2002.” Id. We held that the notice of
appeal, which was filed before the end of the 150-day period,
was timely. Even though it was filed before entry of judgment
and therefore premature, Fed. R. App. P. 4(a)(2) treats such
notices of appeal as filed on the day judgment is entered. Id.
at 1081; see also Fed. R. App. P. 4(a)(2) (a premature notice
of appeal “is treated as filed on the date of and after entry”).
In Peng v. Mei Chin Penghu, 335 F.3d 970 (9th Cir. 2003),
we were also confronted with a district court’s failure to set
forth judgment on a separate document after an order dismiss-
ing all claims had been entered. Since “judgment is consid-
ered entered 150 days from entry of the final order dismissing
the remaining claims,” we held that the notice of appeal was
timely because it was filed before 150 days had run. Id. at
2Before the 2002 amendments to Fed. R. App. P. 4 and Fed. R. Civ. P.
58 took effect, the majority view was that the period for appeal never
began to run if the district court docketed the order but failed to set it forth
on a separate document. See Fed. R. App. P. 4, Advisory Comm. Notes
to 2002 Amends., Subdivision (a)(7). In 2002, the 150-day rule was added
to ensure that “parties will not be given forever to appeal (or to bring a
postjudgment motion) when a court fails to set forth a judgment or order
on a separate document in violation of Fed. R. Civ. P. 58(a)(1).” Id.; see
also Fed. R. Civ. P. 58, Advisory Comm. Notes to 2002 Amends.
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975. Most recently in ABF Capital Corp. v. Osley, 414 F.3d
1061, 1064-65 (9th Cir. 2005), we again held that the time to
appeal began to run 150 days after entry of the district court’s
final order if judgment was not set forth on a separate docu-
ment. There, the notice of appeal was timely because it was
filed within 180 days — 150 days for entry of judgment, plus
30 days for filing the notice of appeal — of the order appealed
from. Id.
[3] In the instant case, the notice of appeal was not filed
within 180 days of the district court’s final order. The stipula-
tion and order docketed on June 16, 2004 disposed of all
claims in the complaint and denied all relief to Stephanie-
Cardona. As the stipulation and order stated, “this case is now
ripe for entry of final judgment.” At that point, under Fed. R.
Civ. P. 58(a)(2), the clerk should have prepared a separate
judgment and entered it without specific direction from the
court.3 That the clerk failed to promptly do so did not keep the
clock from running. Pursuant to Fed. R. App. P. 4(a)(7)(A)(ii)
and Fed. R. Civ. P. 58(b)(2), judgment was entered as a mat-
ter of law on November 15, 2004, 150 days after the docket-
ing of the stipulation and order. The notice of appeal then had
to be filed within 30 days thereafter, by December 15, 2004.
Fed. R. App. P. 4(a)(1)(A). Stephanie-Cardona’s appeal is
doomed by the failure to file a notice of appeal on or before
December 15, 2004.
[4] Stephanie-Cardona argues, correctly in our circuit
before 2002,4 that judgment was not entered until the district
3“[U]nless the court orders otherwise, the clerk must, without awaiting
the court’s direction, promptly prepare, sign, and enter the judgment
when: (I) the jury returns a general verdict; (ii) the court awards only costs
or a sum certain; or (iii) the court denies all relief[.]” Fed. R. Civ. P.
58(a)(2)(A). The stipulation and order denied all relief to Stephanie-
Cardona. Most of Stephanie-Cardona’s causes of action had already been
dismissed by summary judgment, and the stipulation and order dismissed
the remaining claims with prejudice.
4See, e.g., Corrigan v. Bargala, 140 F.3d 815, 819 (9th Cir. 1998).
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court set it forth on a separate document on January 25, 2005.
The argument is no longer available. The rules plainly provide
that judgment is entered when it is set forth on a separate doc-
ument or when 150 days have run, whichever is earlier. Fed.
R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ. P. 58(b)(2). Because
more than 150 days passed before the district court, for what-
ever reason, issued a judgment on a separate document, the 30
days in which to file a notice of appeal had been running from
November 15, 2004, the end of the 150-day period.
[5] Stephanie-Cardona further argues that the time to
appeal was extended by the attorney’s fees motion filed by
Smith’s two days after the stipulation and order. However,
“[e]ntry of judgment may not be delayed, nor the time for
appeal extended, in order to tax costs or award fees.” Fed. R.
Civ. P. 58(c)(1). An exception is provided by Fed. R. App. P.
4(a)(4)(A) and Fed. R. Civ. P. 58(c)(2), but it does not apply
here. Under Fed. R. App. P. 4(a)(4)(A), if a party files one or
more of six enumerated postjudgment motions, the time for
appeal does not run from the day judgment is entered, but
rather from the day the district court enters an order disposing
of the postjudgment motions.5 One such postjudgment motion
is a motion “for attorney’s fees under Rule 54 if the district
court extends the time to appeal under Rule 58.” Fed. R. App.
P. 4(a)(4)(A)(iii) (emphasis added). The time to appeal is not
extended unless the district court, pursuant to its authority
5Fed. R. App. P. 4(a)(4)(A) provides:
If a party timely files in the district court any of the following
motions under the Federal Rules of Civil Procedure, the time to
file an appeal runs for all parties from the entry of the order dis-
posing of the last such remaining motion: (i) for judgment under
Rule 50(b); (ii) to amend or make additional factual findings
under Rule 52(b), whether or not granting the motion would alter
the judgment; (iii) for attorney’s fees under Rule 54 if the district
court extends the time to appeal under Rule 58; (iv) to alter or
amend the judgment under Rule 59; (v) for a new trial under Rule
59; or (vi) for relief under Rule 60 if the motion is filed no later
than 10 days after the judgment is entered.
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under Fed. R. Civ. P. 58(c)(2), orders that an attorney’s fees
motion has the effect of delaying the clock for filing the
notice of appeal.6 Here, the district court did not issue such an
order. Thus, the attorney’s fees motion did not defer the time
to appeal.
III. The Cross-Appeal
[6] Smith’s filed its notice of cross-appeal on March 9,
2005, fifteen days after Stephanie-Cardona’s notice of appeal.
Fed. R. App. P. 4(a)(3) requires a notice of cross-appeal to be
filed within fourteen days after the initial notice of appeal.
Ordinarily, a late notice of cross-appeal is not fatal because
the court’s jurisdiction over the cross-appeal derives from the
initial notice of appeal. See Mendocino Envtl. Ctr. v. Mendo-
cino County, 192 F.3d 1283, 1298 (9th Cir. 1999). Here,
because the notice of appeal was itself untimely, there was no
prior invocation of jurisdiction that could sustain the cross-
appeal. See Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355,
371 (2d Cir. 2003) (concluding court lacked appellate juris-
diction over cross-appeal because notice of appeal was
untimely). Moreover, we cannot construe the cross-appeal as
an independent appeal from the district court’s December
2005 order denying attorney’s fees, because the notice of
cross-appeal was not filed within 30 days of that order.
Indeed, Smith’s counsel conceded at oral argument that if the
court lacks jurisdiction over Stephanie-Cardona’s appeal, it
necessarily lacks jurisdiction over the cross-appeal. This
cross-appeal must be dismissed.
The appeal and the cross-appeal are dismissed; no party to
recover costs.
6Fed. R. Civ. P. 58(c)(2) states:
When a timely motion for attorney fees is made under Rule
54(d)(2), the court may act before a notice of appeal has been
filed and has become effective to order that the motion have the
same effect under Federal Rule of Appellate Procedure 4(a)(4) as
a timely motion under Rule 59.
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