William Dieser v. Continental Casualty Company, doing business as CNA Insurance Company

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2172
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William Dieser,
Appellee,
v.
Continental Casualty Company,
doing business as CNA Insurance
Company; CompuCom Systems,
Inc.,
Appellants.
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Appeal from the United States
District Court for the Eastern
District of Missouri.
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Submitted: November 16, 2005
Filed: March 2, 2006
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Before MURPHY, BOWMAN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Continental Casualty Company (“Continental”) and CompuCom Systems, Inc.
(“CompuCom”) appeal the August 26, 2004, and March 22, 2005, orders of the

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1The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
2The district court’s memorandum opinion of August 26 indicates that the 441-
day period encompasses February 27, 2001, through May 14, 2002.
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district court.1 As discussed below, neither of these orders was a final, appealable
order. Therefore, we dismiss the appeal for lack of jurisdiction.
Appellee William Dieser, a former employee of CompuCom, brought an action
under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C.
§ 1001 et seq., against Continental and CompuCom to recover benefits under a short-
term disability benefits plan funded by CompuCom and a long-term disability policy
provided by Continental. On August 26, 2004, the district court issued a
memorandum opinion and entered a separate order partially granting Dieser’s motion
for summary judgment and denying Continental and CompuCom’s cross-motion for
summary judgment (“August 2004 order”). The August 2004 order also awarded
Dieser past-due short-term disability benefits in the amount of $1,730.76 from
CompuCom; past-due long-term disability benefits in the amount of $82,788.00 from
Continental; statutory penalties against CompuCom under 29 U.S.C. § 1132(c) in the
amount of $18 per day for 441 days,2 totaling $7,938.00; and an unspecified amount
of pre-judgment interest. Finally, in that order the district court set a bench trial to
resolve the remaining issues of additional statutory penalties for failure to provide
plan documents after May 14, 2002; the precise amount of pre-judgment interest; and
attorney’s fees and costs under 29 U.S.C. § 1132(g).
After an evidentiary hearing was held on November 5, 2004, and the parties
filed post-trial briefs, the district court issued a second memorandum opinion and
entered a separate order on March 22, 2005 (“March 2005 order”). In the March 2005
order, the district court awarded Dieser additional statutory penalties against

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CompuCom pursuant to § 1132(c) in the amount of $6,642.00, representing an award
of $18 per day from May 26, 2002, until May 30, 2003; attorney’s fees in the amount
of $33,949.38; and costs in the amount of $150.00. In the March 2005 order, the
district court also ordered that Dieser “shall show cause on or before March 27, 2005,
if any, as to the precise dollar amount of pre-judgment interest that he is requesting
by providing that total amount in addition to providing the mathematical computations
upon which the total requested amount is based.” Additionally, the district court
provided that Continental and CompuCom could respond to Dieser’s request for pre-
judgment interest by April 3, 2005.
Accordingly, on March 25, 2005, Dieser filed a request for pre-judgment
interest, explaining his position on how the interest should be determined, including
setting forth the applicable statute governing pre-judgment interest, 28 U.S.C. § 1961;
the applicable interest rate; various beginning and ending dates; and the specific
calculations. On April 1, 2005, Continental and CompuCom filed a response to
Dieser’s request, disputing the applicable dates and arguing that Dieser’s calculations
and resulting numbers were flawed and that Dieser failed to respond appropriately to
the district court’s March 2005 order.
Continental and CompuCom filed a notice of appeal on April 21, 2005, thirty
days after the March 2005 order. Continental and CompuCom appealed from the
memorandum opinion and the order entered on August 26, 2004, and the
memorandum opinion and the order entered on March 22, 2005. Continental and
CompuCom’s notice of appeal also indicated that the district court “has not yet ruled
on Plaintiff/Appellee’s motion for pre-judgment interest; however,
Defendants/Appellants intend to include in their appeal any award of pre-judgment
interest.” The district court did not certify either order for appeal under 28 U.S.C. §
1292(b) or expressly direct entry of a final judgment as to fewer than all claims or
parties under Fed. R. Civ. P. 54(b).

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The district court then entered a third order on June 27, 2005 (“June 2005
order”), granting Dieser $104.86 in pre-judgment interest on past-due short-term
disability benefits from CompuCom and $2,689.20 in pre-judgment interest on past-
due long-term disability benefits from Continental. With the June 2005 order, all
issues of liability and all amounts of monetary awards had been specified by the
district court, and nothing was left for the district court to do but execute the
judgment. See Borntrager v. Cent. States, Southeast & Southwest Areas Pension
Fund, 425 F.3d 1087, 1091 (8th Cir. 2005). Continental and CompuCom did not file
another notice of appeal subsequent to the entry of this final, appealable order.
“[J]urisdiction issues will be raised sua sponte by a federal court when there is
an indication that jurisdiction is lacking, even if the parties concede the issue.”
Thomas v. Basham, 931 F.2d 521, 523 (8th Cir. 1991). Generally, a party in a civil
case must file a notice of appeal “within 30 days after the judgment or order appealed
from is entered.” Fed. R. App. P. 4(a)(1)(A). The requirement of a timely notice of
appeal is mandatory and jurisdictional. Arnold v. Wood, 238 F.3d 992, 995 (8th Cir.
2001). Dieser argues that the August 2004 order was a final judgment, making
Continental and CompuCom’s notice of appeal untimely as to the August 2004 order
but timely as to the March 2005 order. Therefore, Dieser contends that we have
jurisdiction to review only the amount of additional statutory penalties and the amount
of attorney’s fees awarded in the March 2005 order. Continental and CompuCom
contend that their appeal was timely as to the entire adjudication of the case by the
district court because “there was not a final judgment from which an appeal could be
taken until (at the earliest) March 22, 2005.”
The notice of appeal filed on April 21, 2005, was premature because the August
2004 order and the March 2005 order were not final, appealable orders. See 28 U.S.C.
§ 1291 (“The courts of appeal . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States.”). A final decision within the

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3This is not a case where the determination of specific amounts would be
“mechanical and uncontroversial,” such that “only a ‘ministerial’ task remains for the
district court to perform.” St. Mary’s Health Ctr. v. Bowen, 821 F.2d 493, 498 (8th
Cir. 1987) (quoting Parks v. Pavkovic, 753 F.2d 1397, 1404 (7th Cir. 1985)) (holding
that an order granting partial summary judgment but not disposing of claims for
injunctive relief and for damages was not a final order). As demonstrated by the
parties’ submissions to the district court, the determination of the amount of pre-
judgment interest by the district court was more than a ministerial task and was
controversial.
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meaning of § 1291 “ends the litigation on the merits and leaves nothing for the court
to do but execute the judgment.” Borntrager, 425 F.3d at 1091 (quoting Cunningham
v. Hamilton County, 527 U.S. 198, 204 (1999)). “A judgment awarding damages but
not deciding the amount of the damages or finding liability but not fixing the extent
of the liability is not a final decision within the meaning of § 1291.” Maristuen v.
Nat’ l States Ins. Co., 57 F.3d 673, 678 (8th Cir. 1995); see also Parke v. First
Reliance Standard Life Ins. Co., 368 F.3d 999, 1002 n.2 (8th Cir. 2004) (holding that
an order explicitly reserving the determination of the amount of attorney’s fees and
pre-judgment interest did not become final until the district court later issued an order
fixing the amounts); Lee v. L.B. Sales, Inc., 177 F.3d 714, 717-18 (8th Cir. 1999)
(holding that an order awarding sanctions but reserving determination of the amount
of sanctions was not appealable until the subsequent entry of an order fixing the
amount of sanctions). The August 2004 and March 2005 orders did not purport to
dispose of all issues in the case. On its face, the August 2004 order indicated that the
amounts of additional statutory penalties, pre-judgment interest and attorney’s fees
and costs remained unresolved. Similarly, the March 2005 order indicated that the
amount of pre-judgment interest was yet to be determined.3 Thus, the April 21, 2005,
notice of appeal was not taken from a final, appealable order and was ineffective to
confer appellate jurisdiction upon this Court.

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We next address whether the prematurely filed notice of appeal can be saved
by Fed. R. App. P. 4(a)(2), which provides that a “notice of appeal filed after the court
announces a decision or order–but before the entry of the judgment or order–is treated
as filed on the date of and after the entry.” We conclude that this rule does not save
the notice of appeal in this case.
The Supreme Court explained in FirsTier Mortgage Co. v. Investors Mortgage
Ins. Co., 498 U.S. 269, 274 (1991), that Rule 4(a)(2) “permits a notice of appeal filed
from certain nonfinal decisions to serve as an effective notice from a subsequently
entered final judgment.” However, the Supreme Court held that Rule 4(a)(2) applies
“only when a district court announces a decision that would be appealable if
immediately followed by the entry of judgment.” Id. at 276. By contrast, Rule 4(a)(2)
does not save a premature appeal “from a clearly interlocutory decision–such as a
discovery ruling or a sanction under Rule 11,” because a “belief that such a decision
is a final judgment would not be reasonable.” Id. In FirsTier, the Supreme Court
found that Rule 4(a)(2) saved a premature notice of appeal filed after the district court
announced from the bench that it was granting summary judgment to the defendant
on all claims. Id. at 270-71, 277. The plaintiff-appellant’s belief in the finality of the
oral ruling was reasonable because the bench ruling disposed of all claims and was a
decision that would have been “final” under § 1291 and, therefore, appealable, had the
judge immediately set forth the judgment and the clerk entered the judgment on the
docket. Id. at 276-77.
As construed by FirsTier, Rule 4(a)(2) is inapplicable to the present situation.
Neither the August 2004 order nor the March 2005 order was one “that would be
appealable if immediately followed by the entry of judgment.” Id. at 276. Because
the August 2004 order expressly left unresolved the amounts of additional statutory
penalties, pre-judgment interest and attorney’s fees and costs, and the March 2005
order called for further submissions from the parties to determine the method of

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4In Miller, this Circuit also declined to adopt the doctrine of “cumulative
finality,” under which a premature appeal is not dismissed if the district court resolves
the case prior to final resolution by the court of appeals. Miller, 369 F.3d at 1035.
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calculation and the amount of pre-judgment interest, these orders could not reasonably
be believed to be final within the meaning of § 1291.
Our prior decisions support this conclusion. We held in Miller v. Special
Weapons, L.L.C., 369 F.3d 1033, 1033-35 (8th Cir. 2004), that a premature notice of
appeal could not be saved by Rule 4(a)(2) where the notice of appeal was filed after
the district court entered summary judgment but before the district court entered a
judgment on a pending counterclaim. Rule 4(a)(2) was inapplicable because the
summary judgment order entered was not one that “would be appealable” under
FirsTier. Miller, 369 F.3d at 1035. “The infirmity in Mr. Miller’s appeal . . . does not
lie in the fact that the district court had failed to issue its final order on the summary
judgment that it announced but rather in the fact that there was an unresolved claim
pending in the district court when Mr. Miller filed his notice of appeal.”4 Id.; see also
Thomas, 931 F.2d at 522-23 (holding that the court lacked appellate jurisdiction where
the notice of appeal was filed after the entry of a non-appealable summary judgment
order but before the dismissal of pending counterclaims and the appellant failed to file
a new notice of appeal after the judgment became final and appealable); Detherage
v. Barnhart, 91 Fed. Appx. 520 (8th Cir. 2004) (unpub. per curiam) (dismissing an
appeal for lack of jurisdiction because Rule 4(a)(2) could not cure the premature
notice of appeal where the order appealed from was not one that “would be
appealable” under FirsTier and a new notice of appeal was not filed after the district
court subsequently entered a final, appealable order). But see Hill v. St. Louis Univ.,
123 F.3d 1114, 1120-21 (8th Cir. 1997) (finding, without mention of FirsTier, that
pursuant to Rule 4(a)(2), a notice of appeal filed from a sanctions order that did not
quantify the amount of sanctions and from a final, appealable order of summary

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5To the extent that our circuit’s decisions regarding the premature filing of a
notice of appeal are in conflict, we are “free to choose which line of cases to follow.”
Kostelec v. State Farm Fire and Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir. 1995).
We believe the narrower view of Rule 4(a)(2) is more faithful to the Supreme Court’s
decision in FirsTier.
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judgment later became effective as to the sanctions order when the amount of
sanctions was later quantified).5
Other circuits also have found that Rule 4(a)(2) does not always operate to save
a premature notice of appeal where the order or judgment appealed from subsequently
becomes final prior to the disposition of the appeal. For instance, based on facts
similar to this case, the Ninth Circuit in In re Jack Raley Construction, Inc., 17 F.3d
291, 294 (9th Cir. 1994), dismissed an appeal for lack of jurisdiction because the
prematurity of the notice of appeal was not cured by Rule 4(a)(2) and the appellants
failed to file a fresh appeal after entry of final judgment. The order appealed was not
one that “would be appealable” under FirsTier because the district court did not
decide the matter of pre-judgment interest until long after the notice of appeal had
been filed and the decision on pre-judgment interest was not merely a ministerial act
but an adjudication of a contested issue. Id.; see also United States v. Cooper, 135
F.3d 960, 962-63 (5th Cir. 1998) (applying the criminal counterpart to Rule 4(a)(2),
stating that “FirsTier allows premature appeals only where there has been a final
decision, rendered without a formal judgment” and overruling pre-FirsTier cases to
the extent they allowed a premature appeal of a non-final decision where judgment
became final prior to disposition of the appeal); Kennedy v. Applause, Inc., 90 F.3d
1477, 1483 (9th Cir. 1996) (holding that Rule 4(a)(2) could not save a premature
appeal from an order that left attorney’s fees and costs to be determined and where the
district court had requested further submissions from both parties to assist in this
determination); Flynn v. Ohio Bldg. Restoration, Inc., No. 04-7091, slip op. at 1(D.C.
Cir. Jun 27, 2005) (unpub. per curiam) (holding that Rule 4(a)(2) could not rescue a
premature appeal because it was taken from a summary judgment order that did not

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quantify damages; consequently, the appellants could not have reasonably believed
that the summary judgment order was a final judgment, and the order was not a
decision that “would be appealable” under FirsTier); Stoney Point Prods., Inc. v.
Underwood, 15 Fed. Appx. 828, 830-31 (Fed. Cir. 2001) (unpub.) (holding that Rule
4(a)(2) has limited applicability after FirsTier and could not save a premature notice
of appeal filed from an order that was not final and appealable).
Additionally, Continental and CompuCom do not fall within the group that Rule
4(a)(2) was intended to protect: “the unskilled litigant who files a notice of appeal
from a decision that he reasonably but mistakenly believes to be a final judgment,
while failing to file a notice of appeal from the actual final judgment.” FirsTier, 498
U.S. at 276. In their April 1, 2005, response to Dieser’s request for pre-judgment
interest filed in compliance with the March 2005 order, Continental and CompuCom
disputed Dieser’s position on the appropriate beginning date for pre-judgment interest
under 28 U.S.C. § 1961, which provides that “interest shall be calculated from the date
of the entry of the judgment.” In that context, Continental and CompuCom admitted
that “the August 26, 2004 Order was not a final appealable Order, as it failed to
resolve all issues between the parties,” and with regard to the March 2005 order, they
“further submit[ted] that no final Order and Judgment has been issued in this matter.”
Defendant Continental Casualty Company’s and Defendant CompuCom Systems,
Inc.’s Response to Plaintiff’s Response to Order to Show Cause Regarding
Prejudgment Interest at 4. Even in the absence of their admissions, we would be
reluctant to find that Continental and CompuCom could reasonably believe that the
August 2004 order or the March 2005 order was final because, as in Jack Raley, the
parties were in disagreement over pre-judgment interest. See Jack Raley, 17 F.3d at
294 (“We are unwilling to conclude that the Appellants were lulled into the reasonable
but mistaken belief that their . . . notice of appeal was efficacious. They could not rely
on the teachings of FirsTier under circumstances in which they challenged the
proposed award of pre-judgment interest.”).

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6We note that because the June 2005 order was properly entered on the civil
docket pursuant to Fed. R. Civ. P. 79(a), even if it did not satisfy the separate-
document requirement of Fed. R. Civ. P. 58(a)(1), the time for filing an effective
notice of appeal has lapsed. Continental and CompuCom had at most 180 days from
the entry of the order on the docket on June 27, 2005, in which to file a notice of
appeal. See Fed. R. App. P. 4(a)(7)(A)(ii) (providing that if a separate document is
required by Fed. R. Civ. P. 58(a)(1), the order is deemed entered for purposes of
determining the time to file an appeal at the earlier of two events: (1) the order is set
forth on a separate document or (2) if a separate document is not filed, 150 days have
run since the order was entered on the docket).
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When Continental and CompuCom filed their notice of appeal several weeks
later on April 21, 2005, they knew that “no final Order and Judgment ha[d] been
issued in this matter” because the district court had not quantified the amount of pre-
judgment interest owed to Dieser. Continental and CompuCom even noted in their
notice of appeal that the district court had not yet determined the amount of pre-
judgment interest and stated that they “intend to include in their appeal any award of
pre-judgment interest.” This statement of intent is insufficient to satisfy the
requirement that the notice of appeal be filed “within 30 days after the judgment or
order appealed from is entered.” Fed. R. App. P. 4(a)(1)(A) (emphasis added).
Continental and CompuCom’s April 21, 2005, notice of appeal was filed prematurely,
and they did not file a new notice of appeal after the district court entered the June
2005 order, which disposed of all issues in the case and was a final, appealable order.6
Accordingly, the appeal is dismissed for lack of jurisdiction.
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