Catz v. Chalker

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT S. CATZ; JASON A. CATZ; 
SHAWN D. CATZ,
Plaintiffs-Appellants,
v.
SUSAN RUTH CHALKER; TEACHER No. 08-16468
INSURANCE ANNUITY ASSOCIATION
College Retirement Fund of the D.C. No.
State of New York; LEONARD I.  4:03-cv-00091-FRZ-
KARP; ANNETTE EVERLOVE, JCG
Defendants-Appellees, ORDER
FIDELITY INVESTMENTS, (FMR
Corporation); WATERHOUSE
SECURITIES,
Defendants-Counterclaimants-
Appellees.

Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted
April 15, 2009—San Francisco, California
Filed May 13, 2009
Before: Dorothy W. Nelson and Richard R. Clifton,
Circuit Judges, and Samuel P. King,* District Judge.
*The Honorable Samuel P. King, United States District Court Judge for
the District of Hawaii, sitting by designation.
5743
5744 CATZ v. CHALKER
ORDER
Plaintiffs-appellants Robert Catz, Shawn Catz, and Jason
Catz appeal the District Court’s grant of attorneys’ fees.
Appellees argue that the appeal must be dismissed for lack of
jurisdiction. Their argument presents us with an issue of first
impression in this circuit: whether a motion to correct a cleri-
cal mistake pursuant to Fed. R. Civ. P. 60(a) filed within ten
days of the entry of judgment tolls the time for the filing of
an appeal under Fed. R. App. P. 4(a)(4)(A)(vi). We hold that
it does, and thus we conclude that we have jurisdiction and
proceed, in a separate memorandum decision, to the merits of
the appeal.
The District Court entered judgment granting attorneys’
fees to defendants on October 30, 2007. On November 9,
2007, the Catzes filed a motion, titled “Motion to Amend the
Final Judgment Pursuant to Fed. R. Civ. P. 59a,” arguing that
the final judgment was unenforceable because their names
were misspelled in the caption. On November 27, 2007, the
District Court filed an order, nunc pro tunc, amending the
caption. On December 21, 2007, the Catzes submitted a con-
formed copy of a Notice of Appeal to the clerk of the District
Court.
Appellees argue that this court does not have jurisdiction
because the Catzes’ notice of appeal was untimely. See Whit-
taker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir. 1981).
Ordinarily, a notice of appeal in a civil case must be filed
within 30 days of entry of judgment, under Fed. R. App. P.
4(a)(1). The filing of certain motions, however, tolls the run-
ning of that time period. Fed. R. App. P. 4(a)(4)(A) provides:
“[i]f a party timely files in the district court any of the follow-
ing motions under the Federal Rules of Civil Procedure, the
time to file an appeal runs for all parties from the entry of the
order disposing of the last such remaining motion.” The ensu-
ing list includes a motions “for relief under Rule 60 if the
CATZ v. CHALKER 5745
motion is filed no later than 10 days after the judgment is
entered.” Fed. R. App. P. 4(a)(4)(A)(vi).
Although appellants characterized their November 9, 2007
motion as a motion to amend the judgment pursuant to Fed.
R. Civ. P. 59(a), it is more properly construed as a motion to
correct a clerical mistake pursuant to Fed. R. Civ. P. 60(a).
See Hasbrouck v. Texaco, Inc., 879 F.2d 632, 635 (9th Cir.
1989) (“The nomenclature the movant uses is not control-
ling.”).
Fed. R. App. P. 4(a)(4)(A)(vi) tolls the time for the filing
of an appeal if a party has moved “for relief under Rule 60.”
Federal Rule of Civil Procedure 60 has two sections. Rule
60(a) permits a court to “correct a clerical mistake or a mis-
take arising from oversight or omission whenever one is
found in a judgement, order, or other part of the record.” Rule
60(b) permits a court to “relieve a party . . . from a final judg-
ment” for, inter alia, mistake, inadvertence, excusable
neglect, newly discovered evidence, or fraud.
The language of Appellate Rule 4 — “for relief under Rule
60” — is thus susceptible to two interpretations. The rule
could pertain only to Rule 60(b) motions because the Rule
uses the words “for relief” and only a Rule 60(b) motion “re-
lieve[s] a party.” Alternatively, because the rule refers to
motions under “Rule 60,” and not “Rule 60(b),” the tolling
provision could apply to both 60(a) and 60(b) motions. In the
former interpretation, the words “for relief” would serve as a
qualifier; in the latter, the words would serve as a descriptor.
The two courts that have addressed the issue both held that
a 60(a) motion does toll the time for appeal. Dudley ex rel.
Estate of Patton v. Penn-Am. Ins. Co., 313 F.3d 662, 665 (2d
Cir. 2002); Internet Fin. Servs., LLC v. Law Firm of Larson-
Jackson, P.C., 394 F. Supp. 2d 1, 4-5 (D.D.C. 2005).1
1
Appellee TIAA-CREF relies on several out-dated decisions holding
that nunc pro tunc amendments of clerical errors do not extend the time
5746 CATZ v. CHALKER
We agree and join those decisions in holding that a motion
under Rule 60(a) tolls the time for filing a notice of appeal.
If Fed. R. App. P. 4(a)(4)(A)(vi) were intended to be limited
to motions under Rule 60(b), it would have been clearer and
simpler for it to refer to “Rule 60(b).” It is unlikely that the
drafters of Appellate Rule 4 decided to rely upon subtle indi-
rection by use of the words “for relief” to indicate that only
motions under Rule 60(b) are covered. Moreover, Rule 60 is
entitled “Relief from a Judgment or Order.” Although the
word “relief” appears only in section 60(b), the title suggests
that both 60(a) and 60(b) motions may be viewed as seeking
“relief.” The plain language of the Rule suggests that it
encompasses all motions under Rule 60.
The strongest argument for the alternative, narrower read-
ing of the Rule comes from an examination of its history.
for filing an appeal. See, e.g., FTC v. Minneapolis-Honeywell Regulator
Co., 344 U.S. 206, 211 (1952) (“[T]he mere fact that a judgment previ-
ously entered has been reentered or revised in an immaterial way does not
toll the time within which review must be sought.”) (discussing tolling in
applications for writ of certiorari); United States v. Bealey, 978 F.2d 696,
699 (Fed. Cir. 1992) (interpreting 28 U.S.C. § 2645(c), which permits
appeals from the Court of International Trade); Offshore Prod. Contrac-
tors, Inc. v. Republic Underwriters Ins. Co., 910 F.2d 224, 229 (5th Cir.
1990) (interpreting Fed. R. App. P. 4). Even assuming these decisions
were applicable, all of these cases were decided prior to 1993, when Fed.
R. App. P. 4 was “amended to include, among motions that extend the
time for filing a notice of appeal, a Rule 60 motion that is served within
10 days after entry of judgment.” Fed. R. App. P. 4 advisory committee’s
note.
Appellees also cite more recent cases from other circuits: In re Am.
Safety Indem. Co. v. Official Comm. of Unsecured Creditors, 502 F.3d 70,
72 (2d Cir. 2007) (per curiam), and Farkas v. Rumore, 101 F.3d 20, 22
(2d Cir. 1996) (per curiam) (“Where a judgment is reentered, and the sub-
sequent judgment does not alter the substantive rights affected by the first
judgment, the time for appeal runs from the first judgment.”). In both
cases, however, the court clerk reentered judgment sua sponte, not upon
a motion, taking it outside the scope of the exceptions codified in Fed. R.
App. P. 4(a)(4). See Am. Safety, 502 F.3d at 71; Farkas, 101 F.3d at 22.
CATZ v. CHALKER 5747
Prior to the 1993 Amendment, several courts had difficulty
determining whether substantive attacks on a judgment were
motions under Rule 59(e), which tolled the filing period, or
motions under 60(b), which did not. Dudley, 313 F.3d at 675(Sotomayor, J., concurring); see, e.g., Taumby v. United
States, 919 F.2d 69, 71-72 (8th Cir. 1990) (refusing to charac-
terize a post-judgment “Motion for Relief from an Order” as
a motion under Fed. R. Civ. P. 59(e)). The Advisory Commit-
tee explained that the 1993 amendment “eliminate[d] the dif-
ficulty of determining whether a posttrial motion made within
10 days after entry of a judgment is a Rule 59(e) motion,
which tolls the time for filing an appeal, or a Rule 60 motion,
which historically has not tolled the time.” Fed. R. App. P. 4
advisory committee’s note. This would indicate that the
drafters may have intended to eliminate the confusion regard-
ing the difference between 59(e) and 60(b) motions, not to
confer tolling power on a 60(a) motion.
While this historical background is instructive, we must
balance it against the compelling public policy interest in a
broader interpretation of the Rule. See Sprint PCS Assets,
LLC v. City of La Canada Flintridge, 448 F.3d 1067, 1071
(9th Cir. 2006). Because failure to file a timely appeal is juris-
dictional, a narrow reading of the Rule will deprive some par-
ties with valid claims of appellate review. This is especially
true where, as here, the plain language, even if ambiguous,
may lead unwitting or unsophisticated litigants to assume that
any Rule 60 motion is a tolling motion.
Because the plain language of the Rule strongly favors the
broader interpretation, we conclude that the Rule applies to all
motions under Rule 60. We therefore hold that a motion to
correct a clerical mistake pursuant to Fed. R. Civ. P. 60(a)
tolls the time for the filing of an appeal.
Because the Catzes filed their 60(a) motion within ten days
of the final judgment, the time for filing an appeal was tolled
until November 27, 2007, when the order disposing of the
5748 CATZ v. CHALKER
60(a) motion was issued. Accordingly, their December 21,
2007 notice of appeal was timely, and we have jurisdiction
over this case.
It is so ORDERED.
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