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[MattB]

Hello All,

I was recently reviewing certain rules for a pending appeal to the Circuit Court and noticed this irregularity.

The 'Separate Document' requirement is well known in Federal litigation practice. The rule requires any entry of judgment to be spelled out in an identifiable separate document (to help time appeals, etc.).  However, there are exceptions in certain cases in that certain orders by a District Judge do not have to be filed in a Separate Document and can be generated as part of another document, or sometimes, even by Clerk Docket entry.

Those exceptions are spelled our in FRCP 58.  In these instances, a separate document is not required for an entry, say of attorneys' fees. FRCP 58 (a)(3).

FRAP 4 of the appellate rules, regarding the timing of an appeal, seems to have in mind the FRCP.  According to the Advisory Committe Notes to FRAP, FRAP 4 and FRCP 58 should be read together in spirit.

To this end, before 2007, FRAP 4(a)(7), when referring to Orders that did not require a separate document, listed a reference to FRCP 58.  At that time FRCP 58 listed exceptions at 58(a)(1)(A)-(E). 

In the 2007 Amendment, FRCP was cleaned up and re-nested to read FRCP 58(a)(1)-(5).  Because the edit was so minimal in that it merely reduced a nesting level, it did not appear to have any significant effect (see any treatise on the FRCP and FRAP).  This change was not noted or further amended in the 2009 amendment to the FRCP.

Well, it appears no one noticed that the FRAP Rule was never amended to reflect the change in the FRCP.  It is obvious from the intent of the Rules that FRAP is referencing FRCP 58(a)(1)-(5), not just 58(a)(1).  As read today, FRAP 4(a)(7) should reference FRCP 58(a) in its entirety, not just 58(a)(1).  The Federal Rules of Appellate Procedure should be amended/updated.

I wonder if this will affect the Appellate Court's ruling?  Is this the kind of item that the Circuit Courts will look into the intention of the rule, or will they apply it literally?  Is there some kind of catch-all rule that covers this kind of typo?

When our Appeal is decided, I may be able to update everyone on the outcome and ruling.
I would be happy to field any questions or comments on the forum or offline (below).

Regards,

Matthew L. Bycer
Patent Attorney
Bycer Law PLC
480-707-9741
mbycer -at- gmail dot com

[MattB]

Federal Rules of Civil Procedure (FRCP)

Rule 58. Entering Judgment
   (a) Separate Document.
        Every judgment and amended judgment must be set out in a separate document, but
a separate document is not required for an order disposing of a motion:

       (1) for judgment under Rule 50(b);
       (2) to amend or make additional findings under Rule 52(b);
       (3) for attorney’s fees under Rule 54;
       (4) for a new trial, or to alter or amend the judgment, under Rule 59; or
       (5) for relief under Rule 60.


Federal Rules of Appellate Procedure (FRAP)

Rule 4. Appeal as of Right—When Taken
   (a) Appeal in a Civil Case.
       (7) Entry Defined.
            (A) A judgment or order is entered for purposes of this Rule 4 (a):
                    (i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document,
                         when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a);
                           or
                    (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).
            (B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure
                  58(a)(1) does not affect the validity of an appeal from that judgment or order.