Rule 59 Motions & the Time to Appeal When There’s No Separate Judgment

In Makozy, v. Westcor Land Title, the Eleventh Circuit tackled a particularly complicated issue of appellate timing that involved the interaction between Federal Rule of Appellate Procedure 4(a)(4) and Rule 4(a)(7). Simplifying as much as possible (which isn’t much), the case asked if a post-judgment motion could shorten the 150 day period for entry of a judgment when the district court doesn’t set out the judgment in a separate document. The court answered “no,” joining the Ninth and Tenth Circuits.

It’s a solid decision. My only gripe is that it’s unpublished and thus not precedential.

The Makozy Timline

Like many cases involving appeal-timing issues, the timeline in Makozy is both important and complicated:

• April 4: The district court dismissed the plaintiff’s action. But the district court did not set out the judgment in a separate document.
• April 13: The plaintiff sought reconsideration under Federal Rule of Civil Procedure 59.
• April 18: The district court rejected that motion five days later.
• May 9: The plaintiff filed a motion to reopen the proceedings and recuse the district court judge.
• May 12: The district court denied that motion three days later.
• May 25: The plaintiff filed his notice of appeal.

The plaintiff thus appealed:

• 51 days after the district court’s initial dismissal.
• 37 days after the district court’s denial of his first post-judgment motion.
• 13 days after the district court’s denial of his second post-judgment motion.

Rules 4(a)(4) & 4(a)(7)

Most civil litigants have 30 days to file their notice of appeal. That clock normally starts running at entry of the judgment, which often occurs when the district court sets out its judgment in a separate document. But not always. And Makozy’s timeline implicated two parts of Rule 4 that alter the appeal clock.

One is Rule 4(a)(7), which concerns the entry of the judgment. Rule 4(a)(7)(A)(ii) provides that if the district court fails to set out its judgment in a separate document, the judgment is deemed entered—and the appeal clock thus begins running—150 days after the entry of the appealed order or judgment.

The other is Rule 4(a)(4), which concerns certain post-judgment motions. It says that the filing of certain post-judgment motions (including a motion under Rule 59) resets the time to appeal, with the clock restarting when the district court disposes of the last post-judgment motion.

One additional point is that only the first post-judgment motion resets the appeal clock. Litigants cannot use a series of post-judgment motions to indefinitely extend the time to appeal.

Rule 4 in Makozy

Makozy implicated both of these provisions in Rule 4.

The district court did not set out its judgment in a separate document. Under Rule 4(a)(7), the judgment would be deemed entered—and the appeal clock started—150 days after the district court dismissed the action on April 4. So under Rule 4(a)(7), the notice of appeal—filed on May 25—was timely.

But the plaintiff filed—and the district court resolved—a post-judgment motion before that 150 days had run. Under Rule 4(a)(4), the appeal clock would begin once the district court resolved that motion on April 18. So under Rule 4(a)(4), the notice of appeal was late. (Again, the second post-judgment motion could not reset the appeal clock a second time.)

Did the Rule 59 motion shorten the time to appeal?

Two circuits had addressed this question before Markozy. In ABF Capital Corp. v. Osley and Walters v. Wal-Mart Stores, Inc., the Ninth and Tenth Circuits held that the appeal clock still started running 150 days after the district court’s decision. Both reasoned that the entry of a judgment—via either a separate document or the running of the 150 days—was necessary to start the appeal clock. After all, litigants cannot be required to appeal before entry of a judgment. And Rule 4(a)(4)’s provisions on post-judgment appeals could not shorten that time. After all, those provisions were meant to extend the appeal deadline when certain post-judgment motions were filed.

The Tenth Circuit found ABF Capital and Walters to be persuasive. So the notice of appeal in Makozy was timely—it came within 180 days of the district court’s decision, and the Rule 59 motion could not shorten that time.

Makozy, v. Westcor Land Title, 2023 WL 3409619 (11th Cir. May 12, 2023), available at the Eleventh Circuit and Westlaw