Brackett v. Hautamaa ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JERRI BRA CK ETT,
Plaintiff - Appellant,
No. 06-1162
v. (D.C. No. 05-Z-2578)
(D . Colo.)
PAUL HAU TAM AA, M .D.; RUTH B.
N A U TS, M .D .; C OLO RA D O
PERM ANEN TE M ED ICA L G RO UP,
P.C .; K AISER FO U N D ATIO N
HEALTH PLAN OF CO, IN C.;
HOW ARD M . KIRSHBAUM , Arbiter;
M ILES FLESC HE, C hief C lerk; JOHN
D O ERNER , C hief C lerk; SU SAN
FESTAG, Chief Clerk,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Petitioner-Appellant Jerri Brackett, proceeding pro se, seeks to appeal the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
district court’s dismissal of her complaint challenging the result of one or more
actions filed in the Colorado state courts as violating her constitutional rights to
equal protection and due process. The district court concluded that M s.
Brackett’s federal claims were, under the Rooker-Feldman doctrine, an
impermissible attempt to seek review of a state court judgment. The district court
found that it lacked subject matter jurisdiction and dismissed the complaint
pursuant to Fed. R. Civ. P. 12(h)(3), entering a multi-page “order and judgment”
on January 24, 2006. On February 21, 2006, M s. Brackett filed a motion to
reconsider and for further relief which the district court construed as a motion
under Fed. R. Civ. P. 60(b).
On M arch 15, 2006, the district court entered a second order denying M s.
Brackett’s motion for reconsideration. Subsequently, on April 13, 2006, M s.
Brackett filed a “M otion to Disqualify Pursuant to 28 § 455 and Request to
Certify Pursuant to 28 § 2403 (In Lieu of Permission to Appeal),” which was
docketed by the district court as a notice of appeal.
This court cannot exercise jurisdiction absent a timely notice of appeal.
United States v. Torres, 372 F.3d 1159, 1161 (10th Cir. 2004) (internal citation
omitted). If we were to construe the April 13 filing as a notice of appeal, it is
clear that the appeal from the denial of the motion for reconsideration is timely,
as the notice of appeal would be filed within 30 days of the order. Fed. R. App.
P. 4(a)(1)(A). Fed. R. Civ. P. 58(a)(1) does not require that a separate judgment
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be entered on the denial of a Rule 60(b) motion, so the time for filing a notice of
appeal would begin to run with entry of the order denying the motion for
reconsideration.
As noted, the district court entered an order and judgment on January 24.
Even though the order and judgment purported to actually enter judgment, the
judgment was not on a separate document as required by Rule 58. The separate
document requirement is mechanically applied, so an order containing a reasoned
disposition combined with a judgment will not satisfy the rule. Clymore v.
United States, 415 F.3d 1113, 1117 (10th Cir. 2005); Allison v. Bank-Denver, 289
F.3d 1223, 1232 (10th Cir. 2002). In the absence of a separate document, a
judgment on the January 24 order and judgment is deemed entered 150 days after
its entry on the docket. Fed. R. Civ. P. 58(b)(2)(B). As M s. Brackett’s ostensible
notice of appeal was filed before the 150 days had run, it would be timely. See
Fed. R. App. P. 4(a)(1)(A).
M s. Brackett did not file a formal notice of appeal, so we must inquire
whether her motion to disqualify and certify is the “functional equivalent of a
timely appeal.” See Smith v. Barry, 502 U.S. 244, 248-49 (1992) (stating that “if
a document filed within the time specified by Rule 4 gives the notice required by
Rule 3, it is effective as a notice of appeal.”). “[A ] notice of appeal must
specifically indicate the litigant’s intent to seek appellate review, the purpose of
this requirement is to ensure that the filing provides sufficient notice to the other
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parties and the courts.” Id. at 248 (internal citations omitted). “[D]etermining
whether a motion is the functional equivalent of a notice of appeal turns on the
issue of notice.” United States v. Smith, 182 F.3d 733, 735 (10th Cir. 1999).
Rule 3 requires notice of three elements: “the party or parties taking the appeal by
naming each one in the caption or body of the notice”; “the judgment, order or
part thereof being appealed”; and the “court to which the appeal is taken.” Fed.
R. App. P. 3(c)(1).
W hile we must “construe Rule 3 liberally when determining whether it has
been complied with,” Barry, 502 U.S. at 248, M s. Brackett’s motion fails to meet
the minimal notice requirements of Rule 3 and is not the functional equivalent of
a timely notice of appeal. The title of M s. Brackett’s motion states that it is “In
Lieu of Permission to Appeal.” Further, in the motion itself, M s. Brackett
specifically requests that the court “allow Plaintiff to bypass a petition for
permission to appeal” and instead “consider granting a motion to disqualify.”
M ot. to Dismiss and Certify at 4. Finally, M s. Brackett’s motion fails to state
what is being appealed. Nothing in M s. Brackett’s motion would provide notice
to the remaining parties of her intent to appeal. If anything, M s. Brackett’s
motion expresses her intent not to seek a formal notice of appeal. Consequently,
M s. Brackett’s motion failed to provide adequate notice and it does not serve as
the functional equivalent of a timely notice of appeal.
Accordingly this court lacks jurisdiction and we DISM ISS the appeal. W e
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DENY the motion to proceed in forma pauperis.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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