Witasick v. Minnesota Mutual — civil — affirmed — Nygaard
Published Third Circuit opinions involving pro se litigants are fairly rare. Pro se civil litigants? Quite rare. Pro se civil litigants with felony records who are allowed to give oral argument?* New to me.
Now, if the pro se party won the case,that would be rarest of all, but it wasn’t to be. He did pick up some style points on a procedural issue, though.
Attorney Kevin Witasick had insurance coverage. After a coverage dispute, the parties settled and Witasick signed a covenant not to sue. At the same time, Witasick was prosecuted and convicted of fraud and related charges, and an insurer’s employee testified against him. Witasick then initiated the current case by suing the insurance companies. The district court dismissed the suit based on the settlement agreement, and today the Third Circuit affirmed.
Although the merits were a slam-dunk, there is an interesting procedural wrinkle that federal practitioners should note.
The court held that Witasick’s notice of appeal was timely, even though it was filed far more than 30 days after the district-court opinion dismissing his claims, because the district court did not set out the dismissal in a separate document, per FRCivP 58. While there was an ECF docket entry stating that the case terminated, and the court today agreed that ECF docket entries could satisfy Rule 58, the docket entry here did not because it did not give the basis for termination (and maybe because it was a mere clerical notation, although the opinion is less clear here). The court said that text orders usually would satisfy Rule 58, while utility events and minute entries cannot because they are not orders and are not signed by a judge. While that part looks like dicta, this is the first case I’ve seen grappling with how Rule 58 applies in the age of ECF.
Joining Nygaard are Fuentes and Greenaway. Arguing counsel were Kevin Witasick for himself and Jacqueline Herring for the insurers.
* He was allowed to do oral argument, but then he didn’t show. I should know — I argued the case that was supposed to be up second that morning, but the panel had us go first in case he arrived late.
Maher Terminals v. Port Authority of NY & NJ — Tonnage Clause — affirmed — Fisher
Maybe I overslept the day we covered the Tonnage Clause in con law. If you’re as sadly uninformed as I, the Tonnage Clause of the US Constitution (article I, section 10, clause 3) bars states from “lay[ing] any Duty of Tonnage” without Congress’s say-so.
Today, a divided Third Circuit panel held that a marine terminal operator challenging its rent cannot state a claim under the Tonnage Clause because said clause’s zone of interests is limited to injuries to a vessel as a vehicle of commerce. To its great credit, the majority opinion smoothly uses both “unmoor” and “[a]nchoring,” without going overboard with nautical whimsy.
Joining Fisher were Shwartz in full and Jordan in part. Dissenting in part, Jordan disagreed that the plaintiff failed to state a Tonnage Act claim. Might be a plausible case for cert. Arguing counsel were former Coast Guard captain Lawrence Kiern of Winston & Strawn for the appellant and Peter Isakoff of Weil Gotshal for the appellees.
Having spent some more time with the Witasick opinion, I am not entirely sure that I agree with some of the court’s reasoning, dicta notwithstanding. The court twice mentions judicial signatures, once on page 5 (in describing Judge Rodriguez’s opinion and order) and then once again on page 9. The latter reference is in service of the broader discussion of whether text-only ECF entries can satisfy the separate document requirement. The court writes that text-only orders “usually have no difficulty satisfying the separate document requirement of Rule 58(a)” because they are “separate and self-contained from any actual opinion; they note the relief granted; and they omit (or substantially omit) the District Court’s reasoning. And, significantly, they contain an electronic signature of a judge.”
But the presence or absence of a judge’s signature should be completely irrelevant. As I read Rule 58(b), it specifically contemplates that certain documents satisfying the separate document requirement need not contain a judge’s signature. They can instead be signed by the clerk. Thus, assuming that the Third Circuit accurately describes the various district court ECF case-related entries—and I would have preferred some additional citations—I do not see why a “utility event” (assuming this is what “CIVIL CASE TERMINATED” is; the opinion is not entirely clear) could not suffice as a Rule 58 judgment. If it said “CIVIL CASE TERMINATED – PLAINTIFF TAKES NOTHING – SIGNED THE CLERK,” wouldn’t that be enough? That is, assuming that text-only entries ever suffice?
By extension, I do not know why the opinion says that the sufficiency of text-only orders is “hardly controversial” and that text-only orders “usually have no difficulty satisfying the separate document requirement of Rule 58(a).” As far as I am aware, there is precisely one other precedential Court of Appeals decision on the general sufficiency of text-only orders, and it too discusses the issue in dicta. And there is nothing inherently separate-document-requirement compliant about text-only orders. They can contain reasoning, for instance, which is prohibited under longstanding Third and D.C. Circuit precedent. I have seen plenty of text-only orders that are longer than your standard “regular” orders granting motions to dismiss.
(Note also that, in discussing why minute entries cannot suffice, the court cites a *1992* Fifth Circuit decision, which I imagine predates electronic filing and ECF events. And as the Fifth Circuit’s opinion shows, that “minute entry” was five pages long and contained reasoning…it wouldn’t have sufficed in any event.)
Finally, the court’s opinion does not address an issue that the appellee appears to raise on page 2 of its brief: whether the denial of the intervening motion for reconsideration started the 30-day clock early. Every court of appeals that has considered the issue has said “no,” and the Third Circuit’s opinion says “no” by implication. But it would have been nice to resolve the question.
Critiques notwithstanding, it is a good thing, as you point out, that at least one Court of Appeals has finally decided to grapple with the state of Rule 58 in the age of electronic filing. As I have argued elsewhere, Rule 58 should really be revised to account for modern electronic filing practices, and it should also incorporate the more than half century of case law defining its boundaries.
David, I appreciate your excellent comment, and I agree with everything you’ve said. I think panel rehearing would be the right solution here.
You’re right that “hardly controversial” is questionable. Besides the good points you make, I also can imagine courts reading the “and” in 58(c)(2) to foreclose the position that a docket entry can itself be the separate document, although substantial arguments can be made against that reading. I think the opinion would have been stronger had it engaged that point.
I don’t think that panel rehearing is necessary, because on what the court *did* decide, it seems to have been right. The opinion and order didn’t satisfy the separate document requirement, so the 150-day time extension applied. The “CIVIL CASE TERMINATED” thing didn’t either. And while the court didn’t reach the issue, I don’t think that the motion for reconsideration forced entry of the judgment. So on the Rule 58 point, the outcome was fine. The additional dicta discussion strayed a bit, but it isn’t wrong, exactly, just ambiguous, and thus ripe for the picking of nits.
You’re probably right, time will tell.