United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER DENYING DEFEND ANTS'
MOTION TO VACATE
LAWRENCE L. PIERSOL DISTRICT COURT JUDGE.
move to vacate two Orders issued by this Court. (Doc. 74.)
After a jury verdict in favor of Defendants, Plaintiff filed
a pro se notice of appeal with the Eighth Circuit on July 19,
2016. (Doc. 59). On August 5, 2016, through her attorneys of
record, Plaintiff filed a motion to withdraw her notice of
appeal, doc. 64, and a motion for a new trial pursuant to
Rule 59(a)(1)(A) of the Federal Rules of Civil Procedure,
doc. 65. Defendants ask the Court to vacate an order issued
on October 13, 2016 that granted both Plaintiffs motion to
withdraw her notice of appeal and her motion for leave to
file a late brief in support of her motion for new trial.
(Doc. 69.) The second order Defendants want the Court to
vacate was issued on October 26, 2016, and it granted
Plaintiff s motion to extend the time to file a brief in
support of her motion for new trial. (Doc. 73.)
argument is simple: the filing of the notice of appeal on
July 19, 2016 divested this Court of jurisdiction and
therefore the orders issued thereafter are nullities.
Defendants rely on Sykes v. United States, 392 F.2d
735, 738 & n.l (8th Cir. 1968), for the "general
rule" that "filing a notice of appeal deprives the
district court of jurisdiction over the subject matter."
In Sykes, the Eighth Circuit held that the
appellant's timely notice of appeal on February 2, 1967
from a judgment of December 7, 1966 divested the lower court
of jurisdiction and, therefore, a subsequent motion for new
trial, a withdrawal of the notice of appeal, a new final
judgment by the district court, and a new notice of appeal
regarding the district court's final judgment "were
all nullities since jurisdiction then was in the appellate
court." Id. at 738. Based on that conclusion,
the Eighth Circuit in Sykes only addressed the
issues arising out of the judgment of December 7, 1966, based
on the notice of appeal filed on February 2, 1967. Defendants
fail to realize that the law has changed since 1968 when
Sykes was decided.
Griggs v. Provident Consumer Discount Corp., 680
F.2d 927 (3d Cir. 1982), rev 'd 459 U.S. 56
(1982), the Third.Circuit interpreted Federal Rule of
Appellate Procedure 4(a)(4) to void appellate jurisdiction
only where an appellee could demonstrate that the premature
filing of a notice of appeal by the appellant resulted in
prejudice to the appellee. The Third Circuit accepted jurisdiction
in Griggs despite the fact that the appellant had
filed his notice of appeal while a Motion for Reconsideration
and a Motion to Alter, Amend and Vacate Judgment
(Fed.R.Civ.P. 59(e)) was pending before the district court.
Id., 680 F.2d at 929-30. Technically, Rule 4(a)(4)
required the appellant to file a new notice of appeal after
the district court ruled on the Rule 59 motion. The Third
Circuit concluded that the appellant's notice of appeal
had been prematurely filed under Rule 4(a)(4), "but
though a premature notice of appeal is subject to dismissal,
we have generally allowed appellant to proceed unless the
appellee can show prejudice resulting from the premature
filing of the notice .... In our case, the Griggses have
shown no prejudice by the premature filing of a notice of
appeal." Id. at 929 n. 2.
reversing the Third Circuit in Griggs, the United
States Supreme Court held that the filing of the Rule 59
motion stripped the appellate court of jurisdiction and
required dismissal of the appeal. See Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 61 (1982) (per
curiam). That decision was based on the Supreme Court's
construction of Rule 4(a)(4) of the Federal Rules of
had been amended in 1979 to resolve questions surrounding the
filing of post trial motions. At that time, the Advisory
Committee on Appellate Rules discussed the problems and the
The present rule [pre-1979], since it provides for the
"termination" of the "running" of the
appeal time, is ambiguous in its application to a notice of
appeal filed prior to a post trial motion filed within the
10- day limit. The amendment would make it clear that in such
circumstances the appellant should not proceed with the
appeal during pendency of the motion but should file a new
notice of appeal after the motion is disposed of.
Griggs, 459 U.S. at 60 n.2 (citing Note of Advisory
Committee on Appellate Rules* 28 U.S.C.A. following Rule 4).
A principal consideration behind the 1979 amendments was to
prevent wasted effort by the appellate courts. As the
[S]ince a notice of appeal filed before the disposition of a
post trial motion, even if it were treated as valid for
purposes of jurisdiction, would not embrace objections to the
denial of the motion, it is obviously preferable to postpone
the notice of appeal until after the motion is disposed of.
Id. The Supreme Court expressly approved this
interpretation of Rule 4(a)(4) in Griggs. The 1979
amendments to the appellate rules, the Court determined,
deprived the courts of appeals of jurisdiction when a Rule 59
motion was pending in the district court.- Id. at
60. Although in Griggs the Court considered the
effect of a notice of appeal on an already pending Rule 59(e)
motion, the Court's language addressed the effect of Rule
4(a)(4) broadly enough to cover cases where the notice of
appeal is filed prior to the Rule 59 motion, as in the
present case. Citing Professor Moore's treatise with
approval, the Court stated that the effect of a Rule 59
motion on a previously filed notice of appeal is that
"'[t]he appeal simply self-destructs.' "
Id. at 61 (quoting 9 J. Moore, B. Ward & J.
Lucas, Moore's Federal Practice ¶
204.12, p. 4-65 n. 17 (1982)).
Griggs, the Eighth Circuit held that a motion to
amend the judgment filed pursuant to Rule 59(c) two days
after a notice of appeal had been filed voided the notice of
appeal and placed jurisdiction back with the district court.
See Faysound Ltd. v. Falcon Jet Corp., 940 F.2d 339,
341 -42 "(8th Cir. 1991). Like the Supreme Court in
Griggs, the Eighth Circuit in Faysound
relied on Rule 4(a)(4) of the Federal Rules of Appellate
Procedure: "If a timely motion under the Federal Rules
of Civil Procedure is filed in the district court by any
party ... under Rule 59 to alter or amend the judgment...,
[a] notice of appeal filed before the disposition of [that
motion] shall haveno effect." Id. at 341-42.
Because the appellant did not file a new notice of appeal
after the district court ruled on the motion to amend and the
judgment became final, the Eighth Circuit dismissed the
appeal in Faysound for lack of
jurisdiction. Id. at 345.
Griggs, Faysound and Rule 4(a)(4) of the Federal
Rules of Appellate Procedure, the motion for new trial filed
by Plaintiff on August 5, 2016 divested the Eighth Circuit of
jurisdiction in this case and returned jurisdiction to this
Court. As a result, the filings and orders after that date
are not nullities. Accordingly, IT IS ORDERED that
Defendants' Motion to Vacate, doc. 74, is denied.