Margaret Foster v. Cerro Gordo County

United States Court of Appeals
For the Eighth Circuit
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No. 16-2621
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Margaret Rae Foster
lllllllllllllllllllll Plaintiff - Appellant
v.
Cerro Gordo County, an Iowa Municipal Corporation; City of Mason City, an Iowa
Municipal Corporation; Roungaroun Phaiboun; Kevin Pals; Shad Stoeffler; Terry
Allen Burns; Additional Unidentified Mason City Police Department Officers or
Employees; Additional Unidentified Cerro Gordo County Jail Staff; Josh
Stratmann; Brandon Neidermayer; Justin Faught; Chad Harkema; Rusty Pals;
Brenda Crom; Marc Kappmeyer
lllllllllllllllllllll Defendants - Appellees
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No. 16-3195
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Margaret Rae Foster
lllllllllllllllllllll Plaintiff - Appellant
v.
Cerro Gordo County, an Iowa Municipal Corporation; City of Mason City, an Iowa
Municipal Corporation; Roungaroun Phaiboun; Kevin Pals; Shad Stoeffler; Terry
Allen Burns; Additional Unidentified Mason City Police Department Officers or
Employees; Additional Unidentified Cerro Gordo County Jail Staff; Josh
Stratmann; Brandon Neidermayer; Justin Faught; Chad Harkema; Rusty Pals;
Brenda Crom; Marc Kappmeyer
lllllllllllllllllllll Defendants - Appellees
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Appeals from United States District Court
for the Northern District of Iowa - Ft. Dodge
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Submitted: May 5, 2017
Filed: September 20, 2017
[Unpublished]
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Before COLLOTON, BOWMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Margaret Foster filed a 42 U.S.C. § 1983 action against individuals and entities
associated with both the Mason City, Iowa, Police Department (the City defendants)
and the Cerro Gordo County Jail (the County defendants). She claimed that the City
defendants used excessive force in arresting her and thereby injured her and that the
County defendants showed deliberate indifference to her serious medical needs, that
is, failed to provide her with timely medical care for the injuries allegedly sustained
at the hands of the City defendants. In two orders, the District Court1 granted separate
motions for summary judgment, the first for the County defendants on January 28,
2016, and then for the City defendants on May 10, 2016.
On February 24, 2016, Foster filed a premature motion under Rule 59(a) of the
Federal Rules of Civil Procedure. The District Court characterized it as a motion for
reconsideration of the January 28 order granting summary judgment to the County
defendants and denied it on March 29, 2016. On April 27, 2016, Foster filed a notice
1
The Honorable C.J. Williams, United States Magistrate Judge for the Northern
District of Iowa, to whom the case was referred for final disposition by consent of the
parties pursuant to 28 U.S.C. § 636(c).
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of appeal (NOA) challenging the January 28 and March 29 orders, and on June 10, a
panel of this Court dismissed the appeal for lack of jurisdiction (no final order)
because the claims against the City defendants were still pending in the District Court
when the NOA was filed. After entering an order in response to Foster’s motion for
clarification (June 17), this Court denied a motion for reconsideration and a petition
for rehearing and rehearing en banc (July 19).
Meanwhile, on May 23, 2016, Foster filed a timely NOA but named only the
order of May 10 that granted summary judgment to the City defendants (No.
16-2621). On June 23, Foster sought leave under Rule 4(a)(5)(A) of the Federal Rules
of Appellate Procedure or Rule 60(b) of the Federal Rules of Civil Procedure to
amend the NOA to add the January and March orders, but the District Court, on
July 14, held that it lacked jurisdiction to rule on the motion because a NOA had been
filed.2 Alternatively, citing Rule 62.1(a) of the Federal Rules of Civil Procedure, the
court ruled that if it were permitted to rule on Foster’s motion for leave to amend the
NOA, it would find excusable neglect and grant the motion.
While Rule 4(a)(5) allows a party an additional 30 days after the expiration of
the time allowed by Rule 4(a) for filing a NOA upon a showing of excusable neglect
or good cause, the rule includes no provision for amending a timely-filed NOA within
that time frame, and this Court had not so interpreted the rule. Foster suggests that we
have authority to vacate that part of the District Court’s order holding that the District
Court lacked jurisdiction and allow the alternative ruling to “take effect,” but we find
no authority permitting us to do so. We conclude that in this case, the better approach
is to remand under Rule 12.1 of the Federal Rules of Appellate Procedure. That rule
permits a court of appeals to remand a case for further proceedings where a district
court has made an indicative ruling on a motion that was filed by a party after a
docketed appeal has divested the lower court of jurisdiction.
2
On July 16, 2016, Foster filed a notice of appeal naming the January 28, March
29, and July 14 orders (No. 16-3195). The appeals have been consolidated.
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We remand the case for the limited purpose of ruling on Foster’s motion to
amend the NOA in No. 16-2621, and we retain jurisdiction over the appeals. See Fed.
R. Civ. P. 62.1(c); Fed. R. App. P. 12.1(b).
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