Tonya Michelle Mahone, as personal representative of the estate of Gerard Watson,… v. Crst Expedited, Inc.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
TONYA MICHELLE MAHONE, as
personal representative of the estate
of Gerard Watson, deceased,
Plaintiff – Appellant,
v.
CRST EXPEDITED, INC.,
Defendant - Appellee,
and
JACQUELINE R. FLETCHER;
GARY EDEN; XYZ CORP.,
Defendants.
No. 19-2151
(D.C. No. 1:15-CV-01009-PJK-KBM)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, BRISCOE, and MORITZ, Circuit Judges.
_________________________________
* Oral argument would not help us decide the appeal, so we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
August 11, 2021
Christopher M. Wolpert
Clerk of Court
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This appeal grew out of a single-vehicle accident that resulted in a
death. The plaintiff, Ms. Tonya Michelle Mahone, sued two individuals
(Jacqueline Fletcher and Gary Eden) and a company (CRST Expedited,
Inc.). CRST obtained summary judgment, and Ms. Mahone appeals that
ruling.
1. Ms. Mahone prevailed at trial, but requested the district court to
separate the judgment into separate documents for each
defendant.
After CRST obtained summary judgment, Ms. Mahone prevailed at
trial against Ms. Fletcher and Mr. Eden, obtaining separate awards of over
$3.6 million. The district court memorialized the outcome in a judgment,
which recited the grant of summary judgment to CRST and the monetary
awards against Ms. Fletcher and Mr. Eden.
2. CRST seeks a limited remand to facilitate a purported settlement.
After obtaining summary judgment, CRST apparently negotiated with
Ms. Mahone. The negotiations led Ms. Mahone to state that the parties had
reached an agreement in principle. But the parties never finalized the
settlement documents.
CRST asks us to enter a limited remand in order to allow the district
court to enforce the settlement. A limited remand appears unnecessary. If
the parties agreed to settle this appeal, CRST could ask us to dismiss the
appeal. See 10th Cir. R. 27.3(A)(1)(a)–(b). But CRST has not done so.
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If we were to grant a motion to dismiss the appeal, CRST could ask
the district court to enforce the remaining aspects of the settlement
agreement. A limited remand thus appears unnecessary, and we deny
CRST’s request.
3. The appeal is untimely.
In any appeal, we must ensure our own jurisdiction. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). In civil cases, we
obtain jurisdiction only if the appellant files a timely notice of appeal.
Bowles v. Russell, 551 U.S. 205, 214 (2007).
The deadline for a notice of appeal is 30 days. Fed. R. App. P.
4(a)(1)(A). But this deadline is tolled when a party moves under Fed. R.
Civ. P. 59(e) to alter or amend the judgment within 28 days of its issuance.
Fed. R. App. 4(a)(4)(A)(iv); see Yost v. Stout, 607 F.3d 1239, 1242 (10th
Cir. 2010).
Within this 28-day period, Ms. Mahone filed a motion that she
labelled as a Rule 59(e) motion to alter or amend the judgment. But her
label does not govern; we must instead consider the substance of the
motion. Hannon v. Maschner, 981 F.2d 1142, 1144 n.2 (10th Cir. 1992). To
constitute a motion to alter or amend the judgment under Rule 59(e), the
movant must “request[] a substantive change in the district court’s
judgment or otherwise question[] its substantive correctness.” Nelson v.
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City of Albuquerque, 921 F.3d 925, 928 (10th Cir. 2019) (internal
quotation marks omitted).
To ascertain the substance of the motion, we consider what
Ms. Mahone requested. She did not ask the district court to change
anything in its rulings; she instead asked the court to separately record the
outcome in three separate judgments, one for each defendant.
Changing the form of the judgment would not change its substance,
so the motion was not a motion to alter or amend. See In re Transtexas Gas
Corp., 303 F.3d 571, 581 (5th Cir. 2002) (concluding that a request to
change the form of a judgment is not a motion to alter or amend the
judgment); see also 12 James W. Moore et al., Moore’s Federal Practice -
Civil § 59.30[2][b] (3d ed. 2021) (stating that a Rule 59(e) motion “must
seek a substantive alteration of the judgment, rather than a clerical
correction”); Utah Women’s Clinic, Inc. v. Leavitt, 75 F.3d 564, 567 (10th
Cir. 1995) (stating that Rule 59(e) does not cover motions to delete an
award of attorney fees or costs from the judgment).
Separating the content into three documents would allow Ms. Mahone
to negotiate with Ms. Fletcher and Mr. Eden while appealing the grant of
summary judgment to CRST. Without separation, Ms. Mahone viewed the
form of the judgment as an unnecessary complication in her negotiations,
explaining that
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 “[t]he collectability of each of the judgments varies widely due
to circumstances related to insurance coverage and contract
disputes among the defendants and insurers,”
 one of the individual defendants had been denied insurance
coverage, and
 the individual defendants might file bankruptcy, which could
delay consideration of the appeal against CRST.
Appellant’s App’x, vol. 2 at 417–18. Given these circumstances, Ms.
Mahone argued that separate judgments would prevent any single party
from complicating her collection efforts.
The district court declined the request, reasoning that Rule 59(e) did
not apply because Ms. Mahone was not challenging the correctness of the
underlying judgment. We agree with the district court.
Because the motion was not—in substance—a motion to alter or
amend the judgment, Ms. Mahone needed to file the notice of appeal within
30 days of the judgment. Fed. R. App. P. 4(a)(1)(A). She did not do so,
which prevents us from obtaining jurisdiction. See Yost v. Stout, 607 F.3d
1239, 1242 (10th Cir. 2010) (“A timely-filed notice of appeal is mandatory
and jurisdictional.”).
Ms. Mahone contends that her motion had sought to correct an error
by the district court, stating that judgment for CRST was superfluous in
light of its award of summary judgment. In the motion itself, however, Ms.
Mahone had not suggested that including CRST in the judgment was an
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error. Ms. Mahone instead argued only that separation would simplify the
appeal and her negotiations with Ms. Fletcher and Mr. Eden.
Finally, Ms. Mahone contends that we have twice characterized post-
judgment motions as motions under Rule 59(e) when the movant seeks
correction of the judgment to include only proper parties. The cases she
relies on, however, are distinguishable.
For example, United States ex rel. Noyes v. Kimberly Construction,
Inc., 43 F. App’x 283 (10th Cir. 2002), involved a Rule 59(e) motion to
remove a defendant from the judgment because the claim against this
defendant had been time-barred. See id. at 285 & n.1. That motion was
properly treated as a Rule 59(e) motion because it sought a substantive
change to the merits of the judgment: removal of a defendant who could
not incur liability because of the statute of limitations.
By contrast, Ms. Mahone’s motion did not address the potential
liability of any defendant. Ms. Mahone just sought separation of the
judgment into separate documents in order to facilitate her collection
efforts while she appealed the ruling for CRST.
Ms. Mahone also relies on Varley v. Tampax, Inc., 855 F.2d 696
(10th Cir. 1988). There the district court granted summary judgment to a
diverse defendant and dismissed the entire suit for lack of diversity
jurisdiction. Id. at 697–98. The diverse defendant sought to drop the non-
diverse parties in order to preserve the award of summary judgment. See
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id. at 698. Our court treated this as a proper Rule 59(e) motion because the
diverse defendant was challenging the substantive decision to dismiss the
action for lack of diversity jurisdiction. Id. at 700–01.
In Ms. Mahone’s post-judgment motion, she did not try to salvage a
favorable ruling by modifying the terms of the judgment. Ms. Mahone
instead asked the district court to separate the judgment into separate
documents solely to facilitate her efforts to negotiate with Ms. Fletcher
and Mr. Eden while appealing the grant of summary judgment to CRST.
Though Ms. Mahone’s concern was perhaps understandable, she did
not seek a substantive change in the judgment or otherwise question its
correctness. As a result, her motion was not a true motion to alter or amend
under Rule 59(e). In the absence of a true motion to alter or amend under
Rule 59(e), Ms. Mahone needed to appeal within 30 days of the judgment.
Fed. R. App. P. 4(a)(1)(A). She did not, so we lack jurisdiction.
Appeal dismissed and motion for limited remand denied.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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