In dismissing respondents' action against petitioner under §
10(b) of the Securities Exchange Act of 1934, the District Court
failed to set forth the judgment in a separate document as required
by Fed.Rule Civ.Proc. 58. Despite the absence of a separate
judgment, but without objection by petitioner, the Court of Appeals
assumed appellate jurisdiction under 28 U.S.C. § 1291, giving
courts of appeals jurisdiction of appeals from all "final
decisions" of the district courts, and reversed on the merits.
Held:
1. Under the circumstances, the parties should be deemed to have
waived Rule 58's separate judgment requirement, and hence the Court
of Appeals properly assumed appellate jurisdiction under §
1291.
2. Where, however, the case's posture changed between the time
of the Court of Appeals' decision and the presentation of the case
to this Court, respondents' counsel having urged here that the
Court of Appeals' judgment be affirmed on a theory different from
that court's reasoning in reversing the District Court, the writ of
certiorari is dismissed as having been improvidently granted.
Certiorari dismissed. Reported below: 568 F.2d 824.
Page 435 U. S. 382
PER CURIAM.
Respondents sued petitioner Bankers Trust Co. under § 10(b) of
the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. §
78j(b) (1976 ed.), for allegedly fraudulent statements. The
District Court for the Southern District of New York dismissed the
action on the ground that the fraud alleged had not occurred "in
connection with the purchase or sale" of a security, as required by
§ 10(b).
Mallis v. Federal Deposit Ins.
Corp., 407 F. Supp.
7 (1975). The Court of Appeals for the Second Circuit reversed,
holding that respondents were "purchasers [of securities] by virtue
of their acceptance of [a] pledge" of stock, and that petitioner
was "a seller by virtue of its release of [a] pledge."
Mallis
v. Federal Deposit Ins. Corp., 568 F.2d 824, 830 (1977). We
granted certiorari to consider the correctness of these rulings of
the Court of Appeals. 431 U.S. 928 (1977).
We find ourselves initially confronted, however, by a difficult
question of federal appellate jurisdiction. As the Court of Appeals
noted in its opinion, a search of the District Court record fails
to uncover "any document that looks like a judgment." 568 F.2d at
827 n. 4. Because both the parties and the District Court
"proceeded on the assumption that there was an adjudication of
dismissal,"
ibid., [
Footnote 1] the Court of Appeals felt free to consider the
merits of the appeal. The Court of Appeals action, however,
conflicts with the decisions of other Courts of Appeals concluding
that a judgment set forth on a "separate document" is a
prerequisite to appellate
Page 435 U. S. 383
jurisdiction. [
Footnote 2]
We conclude that the Court of Appeals for the Second Circuit was
correct in deciding that it had jurisdiction in this case despite
the absence of a separate judgment.
Appellate jurisdiction was invoked under 28 U.S.C. § 1291, which
provides that the "courts of appeals shall have jurisdiction of
appeals from all final decisions of the district courts of the
United States." The issue posed is whether a decision of a district
court can be a "final decision" for purposes of § 1291 if not set
forth on a document separate from the opinion. The issue arises
because of Fed.Rule Civ.Proc. 58, which reads in part:
"Every judgment shall be set forth on a separate document. A
judgment is effective only when so set forth and when entered as
provided in Rule 79(a). [
Footnote
3]
Page 435 U. S. 384
We assume, without deciding, that the requirements for an
effective judgment set forth in the Federal Rules of Civil
Procedure must generally be satisfied before § 1291 jurisdiction
may be invoked. [
Footnote 4] We
nonetheless conclude that it could not have been intended that the
separate document requirement of Rule 58 be such a categorical
imperative that the parties are not free to waive it."
The sole purpose of the separate document requirement, which was
added to Rule 58 in 1963, was to clarify when the time for appeal
under 28 U.S.C. § 2107 begins to run. [
Footnote 5] According to the Advisory Committee that
drafted the 1963 amendment:
"Hitherto some difficulty has arisen, chiefly where the court
has written an opinion or memorandum containing some apparently
directive or dispositive words,
e.g., 'the plaintiff's
motion [for summary judgment] is granted,'
see United States v.
F. & M. Schaefer Brewing Co., 356 U. S.
227,
356 U. S. 229 . . . (1958).
Clerks on occasion have viewed these opinions for memoranda as
being in themselves a
Page 435 U. S. 385
sufficient basis or entering judgment in the civil docket as
provided by Rule 79(a). However, where the opinion or memorandum
has not contained all the elements of a judgment, or where the
judge has later signed a formal judgment, it has become a matter of
doubt whether the purported entry of a judgment was effective,
starting the time running for post-verdict motions and for the
purpose of appeal . . ."
"The amended rule eliminates these uncertainties by requiring
that there be a judgment set out on a separate document -- distinct
from any opinion or memorandum -- which provides the basis for the
entry of judgment."
28 U.S.C.App.p.7824. The separate document requirement was thus
intended to avoid the inequities that were inherent when a party
appealed from a document or docket entry that appeared to be a
final judgment of the district court, only to have the appellate
court announce later that an earlier document or entry had been the
judgment, and dismiss the appeal as untimely. The 1963 amendment to
Rule 58 made clear that a party need not file a notice of appeal
until a separate judgment has been filed and entered.
See
United States v. Indrelunas, 411 U. S. 216,
411 U. S.
220-222 (1973). Certainty as to timeliness, however, is
not advanced by holding that appellate jurisdiction does not exist
absent a separate judgment. If, by error, a separate judgment is
not filed before a party appeals, nothing but delay would flow from
requiring the court of appeals to dismiss the appeal. Upon
dismissal, the district court would simply file and enter the
separate judgment, from which a timely appeal would then be taken.
Wheels would spin for no practical purpose. [
Footnote 6]
Page 435 U. S. 386
In
United States v. Indrelunas, we recognized that the
separate document rule must be "mechanically applied" in
determining whether an appeal is timely.
Id. at
411 U. S.
221-222. [
Footnote
7] Technical application of the separate judgment requirement
is necessary in that context to avoid the uncertainties that once
plagued the determination of when an appeal must be brought.
Cf. United States v. F. M. Schaefer Brewing Co.,
356 U. S. 227
(1958). The need for certainty as to the timeliness of an appeal,
however, should not prevent the parties from waiving the separate
judgment requirement where one has accidentally not been entered.
As Professor Moore notes, if the only obstacle to appellate review
is the failure of the District Court to set forth its judgment on a
separate document, "there would appear to be no point in obliging
the appellant to undergo the formality of obtaining a formal
judgment." 9 J. Moore, Federal Practice � 110.08[2], p. 120 n. 7
(1970).
"[I]t must be remembered that the rule is designed to simplify
and make certain the matter of appealability. It is not designed as
a trap for the inexperienced. . . . The rule should be interpreted
to prevent loss of the right of appeal, not to facilitate
loss."
Id. at 119-120.
The Federal Rules of Civil Procedure are to be "construed
Page 435 U. S. 387
to secure the just, speedy, and inexpensive determination of
every action." In
Foman v. Davis, 371 U.
S. 178 (1962), this Court was asked to apply Rule 73
which, as then written, provided that an appeal was to be taken "by
filing with the District Court a notice of appeal," which notice
"shall designate the judgment or part thereof appealed from." Under
Rule 73, it was clear that the filing of a notice of appeal was
"jurisdictional," and the contents of the notice of appeal were
prescribed in the Rule. This Court nonetheless held in
Foman that a notice of appeal from a denial of motions to
vacate a judgment and to amend the complaint was, in view of an
earlier and premature notice of appeal, a notice of appeal from the
original judgment.
"The defect in the second notice of appeal did not mislead or
prejudice the respondent. With both notices of appeal before it
(even granting the asserted ineffectiveness of the first) the Court
of Appeals should have treated the appeal from the denial of the
motions as an effective, although inept, attempt to appeal from the
judgment sought to be vacated."
371 U.S. at
371 U. S. 181.
The same principles of common sense interpretation that led the
Court in
Foman to conclude that the technical requirements
for a notice of appeal were not mandatory where the notice "did not
mislead or prejudice" the appellee demonstrate that parties to an
appeal may waive the separate judgment requirement of Rule 58.
"It is too late in the day, and entirely contrary to the spirit
of the Federal Rules of Civil Procedure, for decisions on the
merits to be avoided on the basis of such mere technicalities."
371 U.S. at
371 U. S.
181.
Here, the District Court clearly evidenced its intent that the
opinion and order from which an appeal was taken would represent
the final decision in the case. A judgment of dismissal was
recorded in the clerk's docket. And petitioner did not object to
the taking of the appeal in the absence of a
Page 435 U. S. 388
separate judgment. Under these circumstances, the parties should
be deemed to have waived the separate judgment requirement of Rule
58, and the Court of Appeals properly assumed appellate
jurisdiction under § 1291.
Although we conclude that the Court of Appeals did have
appellate jurisdiction to pass on the merits of this case, we do
not reach them. At oral argument, counsel for respondents took the
position that "the mere release of a pledge is [not] a sale." Tr.
of Oral Arg. 32. Counsel urged that the judgment of the Court of
Appeals be affirmed on a theory which differed from the reasoning
of the Court of Appeals in reversing the District Court. Because of
the change in the posture of the case between the time of the
decision of the Court of Appeals and its presentation to us for
decision, we dismiss the writ of certiorari as having been
improvidently granted.
Dismissed.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
[
Footnote 1]
Respondents appealed from a combined opinion and order of the
District Court dated September 30, 1975. In the relatively lengthy
opinion, the District Court granted petitioner's motion to dismiss
the claim for failure to state a federal claim upon which relief
could be granted, and then concluded: "Complaint dismissed in its
entirety. So ORDERED." On the same day, an entry was made on tho
District Court docket reading, "Complaint dismissed in its
entirety. So Ordered. Pollack, J. (mn)."
[
Footnote 2]
See, e.g., Lyons v. Davoren, 402 F.2d 890 (CA1 1968);
Sassoon v. United States, 549 F.2d 983 (CA5 1977);
Richland Trust Co. v. Federal Ins. Co., 480 F.2d 1212 (CA6
1973);
Home Fed. Sav. & Loan v. Republic Ins. Co., 405
F.2d 18 (CA7 1968);
Baity v. Ciccone, 507 F.2d 717 (CA8
1974);
Baker v. Southern Pac. Transp., 542 F.2d 1123 (CA9
1976).
But see W.G. Cosby Transfer & Storage Corp. v.
Froehlke, 480 F.2d 498, 501 n. 4 (CA4 1973).
[
Footnote 3]
Rule 58 reads in its entirety:
"Subject to the provisions of Rule 54(b): (1) upon a general
verdict of a jury, or upon a decision by the court that a party
shall recover only a sum certain or costs or that all relief shall
be denied, the clerk, unless the court otherwise orders, shall
forthwith prepare, sign and enter the judgment without awaiting any
direction by the court; (2) upon a decision by the court granting
other relief, or upon a special verdict or a general verdict
accompanied by answers to interrogatories, the court shall promptly
approve the form of the judgment, and the clerk shall thereupon
enter it. Every judgment shall be set forth on a separate document.
A judgment is effective only when so set forth and when entered as
provided in Rule 79(a). Entry of the judgment shall not be delayed
for the taxing of costs. Attorneys shall not submit forms of
judgment except upon direction of the court, and these directions
shall not be given as a matter of course."
[
Footnote 4]
A "judgment" for purposes of the Federal Rules of Civil
Procedure would appear to be equivalent to a "final decision" as
that term is used in 28 U.S.C. § 1291. Federal Rule Civ.Proc.
54(a), for example, provides that "
[j]udgment' as used in these
rules includes a decree and any order from which an appeal lies."
See also Ex parte Tiffany, 252 U. S.
32, 252 U. S. 36
(1920); 6A J. Moore, Federal Practice � 58.02, pp. 51-52 (1972).
Because Rule 58 provides that a "judgment is effective only . . .
when entered as provided in Rule 79(a)," it is arguable that a
decision must be entered on the civil docket before it may
constitute a "final decision" for purposes of § 1291. Unlike the
separate document requirement, however, the keeping of a civil
docket pursuant to Rule 79 fulfills a public recordkeeping function
over and above the giving of notice to the losing party that a
final decision has been entered against it. A judgment of dismissal
was entered in this case below. See n 1, supra.
[
Footnote 5]
Section 2107 provides that,
"[e]xcept as otherwise provided in this section, no appeal shall
bring any judgment, order or decree in an action, suit or
proceeding of a civil nature before a court of appeals for review
unless notice of appeal is filed, within thirty days after the
entry of such judgment, order or decree."
See also Fed.Rule App. Proc. 4(a).
[
Footnote 6]
Nor would strict compliance with the separate judgment
requirement aid in the court of appeals' determination of whether
the decision of the District Court was "final" for purposes of §
1291. Even if a separate judgment is filed, the courts of appeals
must still determine whether the district court intended the
judgment to represent the final decision in the case.
Cf.
United States v. Hark, 320 U. S. 531
(1944).
[
Footnote 7]
While our decision in
Indrelunas is consistent with the
result we reach today, the beginning paragraph of
Indrelunas could be read as holding that a separate
judgment must be filed in compliance with Rule 58 before a decision
is "final" for purposes of § 1291. In
Indrelunas, we noted
that, since both parties conceded
"that the jurisdiction of the Court of Appeals was based on the
provisions of 28 U.S.C. § 1291, making final decisions of the
district courts appealable, the correctness of the Court of
Appeals' decision depends on whether the District Court's judgment
of February 25, 1971, was a final decision. That question, in turn,
depends on whether actions taken in the District Court previous to
the February date amounted to the 'entry of judgment' as that term
is used in Fed.Rule Civ.Proc. 58."
411 U.S. at
411 U. S. 216. To
the extent the above passage is inconsistent with our decision
today, we disavow it.