Talano, James v. v. Northwestern Medical ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1220
James V. Talano, M.D.,
Plaintiff-Appellant,
v.
Northwestern Medical Faculty Foundation, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 7618--John A. Nordberg, Judge.
Argued September 6, 2001--Decided December 10, 2001
Before Coffey, Kanne, and Evans, Circuit
Judges.
Kanne, Circuit Judge. Plaintiff-
Appellant, Dr. James V. Talano
("Talano"), appeals the district court’s
August 3, 2000 final order entering
summary judgment in favor of Northwestern
Medical Faculty Foundation ("NMFF"). Tal
ano also appeals the district court’s
December 27, 2000 denial of his Motion
for Reconsideration. We lack jurisdiction
to address Talano’s appeal regarding the
August 3 order because the appeal is
untimely. Additionally, although we have
jurisdiction to address Talano’s appeal
of the denial of his Motion for
Reconsideration, we affirm the district
court’s denial of this motion because it
does not conform to the requirements of
Federal Rule of Civil Procedure 60(b).
I. History
On October 29, 1997, Talano filed a one-
count complaint alleging that his
employer, NMFF, subjected him to age
discrimination in violation of the Age
Discrimination in Employment Act
("ADEA"). 29 U.S.C. sec. 621 et seq.
Talano later amended this complaint,
adding additional incidents of age
discrimination and a state law claim for
breach of contract. NMFF filed a motion
for summary judgment with respect to
Talano’s age discrimination claim. The
district court granted NMFF’s motion for
summary judgment in part, holding that
all but two of the incidents underlying
the age discrimination count could not be
considered because they occurred outside
the applicable limitations period. At the
conclusion of discovery, NMFF filed a
second motion for summary judgment on the
remaining two incidents underlying the
age discrimination count and on the state
law breach of contract count. The
district court granted NMFF’s motion and
entered a final order in favor of NMFF on
August 3, 2000.
On August 16, 2000, Talano filed a
Motion for Reconsideration/1 pursuant to
Federal Rule of Civil Procedure 59(e).
Originally, Talano’s motion was noticed
for presentment on August 23, 2000. Due
to the district court judge’s absence,
however, presentment was rescheduled for
September 7, 2000. On September 7, NMFF
filed a written opposition to Talano’s
motion. On the same date, over NMFF’s
objections, the district court accepted
for filing a twelve-page memorandum from
Talano supporting his Motion for
Reconsideration. On October 3, 2000, the
district court accepted an additional
supplement to Talano’s motion. The
district court denied Talano’s motion on
December 27, 2000. Talano filed a Notice
of Appeal on January 25, 2001, seeking
review of both the district court’s
August 3 and December 27 orders.
II. Analysis
We lack jurisdiction to consider the
district court’s grant of summary
judgment in favor of NMFF because Talano
did not comply with the requirements for
filing a timely appeal. Pursuant to
Federal Rule of Appellate Procedure
4(a)(1)(A), Talano had thirty days from
the district court’s entry of judgment to
file a notice of appeal. Talano asserts
that his Motion for Reconsideration,
filed on August 16 pursuant to Rule
59(e), tolled the thirty-day period. We
do not agree. A proper Rule 59(e) motion
filed within 10 days after the entry of a
final judgment will toll the thirty-day
period. See Fed. R. App. P. 4(a)(4)(A)(iv).
However, Talano’s motion was not a proper
Rule 59(e) motion because it lacked
sufficient specificity to satisfy the
particularity requirement of Federal Rule
of Civil Procedure 7(b)(1). Thus, his
motion did not toll the thirty-day
period.
Rule 7(b)(1) provides that "[a]n
application to the court for an order
shall be by motion which . . . shall
state with particularity the grounds
therefor, and shall set forth the relief
or order sought." See Fed. R. Civ. P.
7(b)(1). "The standard for
’particularity’ has been determined to
mean ’reasonable specification.’"
Martinez v. Trainor, 556 F.2d 818, 819-20
(7th Cir. 1977) (finding that defendant’s
Rule 59(e) motion "failed to state even
one ground for granting the motion and
thus failed to meet the minimal standard
of ’reasonable specification’"). Talano’s
August 16 motion, filed on the tenth day
following the entry of the final order,
stated in pertinent part:
With great respect for this Court’s
consideration and conclusions, Plaintiff
is compelled to seek reconsideration of
this Court’s decision to dismiss this
action without granting Plaintiff trial
before a jury. Plaintiff seeks
reconsideration of this Court’s decision
to dismiss his ADEA claims for several
reasons which will be more fully
addressed by a Memorandum in Support
which Plaintiff seeks leave to file. With
regard to regard to [sic] the breach of
contract claim, this Court has misapplied
fundamental principles of contract law,
failed to apply other well-recognized
principles, and is in conflict with
precedent of the Seventh Circuit
construing Illinois state contract law.
(emphasis added). Talano’s statement that
there are "several reasons" to reconsider
is devoid of specificity. Similar to the
motion in Martinez, which failed to state
any grounds for reconsideration, blanket
statements, such as "several reasons,"
provide no greater specificity than
saying nothing at all. Additionally,
Talano failed to supply any citations in
support of his broad assertions that the
district court "misapplied fundamental
principles, failed to apply other well-
recognized principles, and is in conflict
with precedent of the Seventh Circuit
construing Illinois state contract law."
Without more, these assertions do not
satisfy Rule 7(b)(1). Therefore, because
Talano’s motion did not toll the thirty-
day period for filing a timely appeal,
Talano’s January 25, 2001 appeal of the
district court’s August 3, 2000 order was
untimely.
Likewise, Talano’s memorandum in support
of his Motion for Reconsideration
submitted on September 7 did not toll the
thirty-day period for filing a timely
appeal. This memorandum was filed well
outside the ten-day period provided for
filing a proper Rule 59(e) motion. As
this Court explained in Martinez, "if a
party could file a skeleton motion and
later fill it in, the purpose of the time
limitation would be defeated." 556 F.2d
at 820; see also Lac Du Flambeau Band of
Lake Superior Chippewa Indians v. Wis.,
957 F.2d 515, 516-17 (7th Cir. 1992) ("An
empty motion cannot reserve time to file
an explanation after the ten days allowed
by Rule 59.").
Furthermore, the fact that the district
court accepted Talano’s memorandum on
September 7 does not save Talano’s
inadequate Rule 59(e) motion. "[A]
district court may not extend the time
within which a party may move to alter or
amend a judgment under Rule 59(e)." Hope
v. United States, 43 F.3d 1140, 1143 (7th
Cir. 1994) (emphasis added) (citing Fed.
R. Civ. P. 6(b), 59(e)); see also Riley v.
Northwestern Bell Tel. Co., 1 F.3d 725,
726-27 (8th Cir. 1993) (finding that a
timely, but not particularized, Rule
59(e) motion cannot be saved by a
subsequent, untimely memorandum that
attempts to supply the missing
particularity).
The district court’s acceptance of
Talano’s supporting memorandum also does
not implicate the doctrine of unique
circumstances. This doctrine "relieves a
party from the consequences of filing a
late notice of appeal where the district
court has affirmatively assured the party
that his motion has tolled the time for
filing a notice of appeal." Hope, 43 F.3d
at 1143 (citation omitted). Unless the
district court granted Talano specific
assurances that his motion tolled the
appeal clock, "no unique circumstances
existed and the appeal clock remained
running." Id. at 1144. In Hope, "[t]he
district court did nothing more than
enter minute orders granting Hope’s
motions for extending the time in which
to file his Motion For Reconsideration,"
and therefore, the doctrine of unique
circumstances did not apply. Id. at 1143.
In this case, Talano’s thirty-day period
for filing a timely appeal expired before
the district court even accepted Talano’s
memorandum supporting his Motion for
Reconsideration. Nothing in the record
indicates that the district court gave
Talano any assurances prior to the
expiration of the thirty-day period for
filing a timely appeal, much less a
specific assurance, which would arguably
allow Talano’s inadequate Rule 59(e)
motion to toll the thirty-day period.
Talano argues that if the presentment
hearing had not been delayed by the
district court, NMFF’s objections would
have been raised during the thirty-day
period and, in turn, he would have
received notice of the claimed defect and
the possible need to file a timely and
immediate appeal. As we have stated,
however, "[i]t is not the district
court’s duty, nor [the opposing party’s]
duty, to sort through post-judgment
motions and advise the moving party
whether his appeal clock [is] ticking."
Hope, 43 F.3d at 1143-44 (footnote
omitted).
Although we do not have jurisdiction to
review the district court’s August 3
order, we may review the district court’s
December 27 denial of Talano’s Motion for
Reconsideration. When "a motion to alter
or amend a judgment under Rule 59(e) . .
. is filed more than 10 days after entry
of judgment[, it] automatically becomes a
Rule 60(b) motion." See Hope, 43 F.3d at
1143 (citing United States v. Deutsch,
981 F.2d 299, 301 (7th Cir. 1992)).
Because Talano’s supporting memorandum
was filed later than ten days after the
district court’s entry of summary
judgment, the district court had
jurisdiction to hear his motion on the
basis that it was a Federal Rule of Civil
Procedure 60(b) motion. See Hope, 43 F.3d
at 1143. "Relief under Rule 60(b) is an
extraordinary remedy that is to be
granted only in exceptional
circumstances." Provident Sav. Bank v.
Popovich, 71 F.3d 696, 698 (7th Cir.
1995). A Rule 60(b) motion permits relief
from judgment when it is based on one of
six specific grounds listed in the rule.
See Fed. R. Civ. P. 60(b); see also
Deutsch, 981 F.2d at 301 (explaining that
Rule 60(b) motions "must be shaped to the
specific grounds for modification or
reversal found in 60(b)--they cannot be
general pleas for relief"). Rule 60(b)
provides that
the court may relieve a party . . . from
a final judgment, order, or proceeding
for the following reasons: (1) mistake,
inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence
which by due diligence could not have
been discovered in time to move for a new
trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic
or extrinsic), misrepresentation, or
other misconduct of an adverse party; (4)
the judgment is void; (5) the judgment
has been satisfied, released, or
discharged, or a prior judgment upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment should have
prospective application; or (6) any other
reason justifying relief from the
operation of the judgment.
Fed. R. Civ. Pro. 60(b).
We review the district court’s denial of
Talano’s Motion for Reconsideration for
an abuse of discretion. See Hope, 43 F.3d
at 1144. "[S]uch abuse exists ’only in
situations in which no reasonable person
could agree with the district court.’"
Id. (citation omitted). Talano’s motion
is not based on any of the grounds
specified in Rule 60(b). Instead,
Talano’s motion suggests that the
district court made mistakes of law
regarding Illinois contract law and
mistakes of law regarding Talano’s claim
under the ADEA. Thus, because Talano’s
motion fails to conform to any of the
grounds specified in 60(b), we find that
the district court did not abuse its
discretion in denying Talano’s motion.
III. Conclusion
For the foregoing reasons, we DISMISS
Talano’s appeal from the August 3, 2000
order and we AFFIRM the district court’s
December 27, 2000 denial of his Motion
for Reconsideration.
FOOTNOTE
/1 Technically, a "Motion for Reconsideration" does
not exist under the Federal Rules of Civil Proce-
dure. A properly termed Rule 59(e) motion is a
"Motion to Alter or Amend Judgment."