Unpublished Disposition, 927 F.2d 610 (9th Cir. 1989)

No. 89-15724.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Northern District of California, No. CV 84-0629-WHO; William H. Orrick, District Judge, Presiding.

N.D. Cal.

APPEAL DISMISSED.

Before WIGGINS and LEAVY, Circuit Judges, and STEPHENS,^*  District Judge.

MEMORANDUM^** 

Nearly four years after default judgment was entered against them, the defendants, William and Joyce Nolan, brought this Rule 60(b) motion for relief from judgment arguing that an agreement between the plaintiff and the other co-defendants bars any judgment against them. The district court denied the motion, and the Nolans appeal. We dismiss the appeal as untimely.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Reliance Insurance Company ("Reliance"), issued construction bonds in favor of defendant Star Excavation, Inc. ("Star"). Defendants Bradford W. and Phylis Lipke ("Lipkes"), Derwood C. and Diana Miley ("Mileys"), and William J. and Joyce J. Nolan ("Nolans") were named as guarantors for any default by Star.

Star defaulted on the bonds and plaintiff filed suit naming the above defendants. Defendants did not respond, and default judgment was entered against all of them; against the Lipkes and the Mileys on June 18, 1984, and against the Nolans on January 11, 1985. On March 14, 1985, judgment was entered against all defendants for $571,323.12 plus interest.

Between the date of entry of default against the Lipkes and the Mileys and the date of entry of default against the Nolans, Reliance entered into an agreement with the Lipkes and the Mileys. This agreement provided that Reliance would not execute the judgment against the Lipkes and the Mileys in exchange for payment by each of them of $125 per month for the rest of their lives. In addition, each was to take out life insurance in the amount of $100,000 naming Reliance as the beneficiary. Similar terms were offered to and rejected by the Nolans.

Reliance began collection proceedings against the Nolans in September 1988. In response, on December 14, 1988, the Nolans filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). This motion was denied in open court on January 12, 1989, but this denial was never noted in the docket. On February 16, 1989, the court entered an order denying the Nolans' motion for reconsideration filed on February 13, 1989. On April 4, 1989, the court issued an order denying defendants motion for relief from judgment. That order was entered in the docket on April 5, 1989. On April 28, 1989, the court filed a memorandum opinion and second order denying the Rule 60(b) motion and the motion for reconsideration, in which it "repeat [ed] ... the grounds for its decision." The Nolans filed a notice of appeal on May 24, 1989.

DISCUSSION

The Nolans appeal the district court's denial of their motion for relief from judgment. Before reaching the merits of this appeal, we must determine whether they filed a timely notice of appeal.

Under Federal Rule of Appellate Procedure 4(a) (1), a party appealing an order or judgment must file a notice of appeal with the clerk of the district court within 30 days of the entry of the judgment or order appealed from. The district court may extend the time for filing notice an additional 30 days upon a showing of excusable neglect or good cause. Fed. R. App. P. 4(a) (5). Compliance with this rule is jurisdictional and is a prerequisite to the exercise of appellate jurisdiction. Browder v. Director, Dep't of Correction, 434 U.S. 257, 262 (1978); Whittaker v. Whittaker Corp., 639 F.2d 516, 520 (9th Cir.), cert. denied, 454 U.S. 1031 (1981).

An order or judgment is entered for purposes of Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Fed. R. App. P. 4(a) (6). Rule 58 requires that a separate judgment be filed. Rule 79(a) concerns docketing requirements. "Absent compliance with these requirements, 'a party will not ordinarily be found to have exceeded any of the time periods set forth in Fed.R.App.Pro. 4(a).' " Vernon v. Heckler, 811 F.2d 1274, 1276 (9th Cir. 1987) (quoting Calhoun v. United States, 647 F.2d 6, 8 (9th Cir. 1981)).

In the present case, the Nolans have not filed a timely notice of appeal. The civil docket shows entries of the district court's denial of the Nolans' motion for relief from judgment on February 16 and April 5, and so both satisfy the requirements of Fed. R. Civ. P. 79(a). See Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 754-55 (9th Cir.), cert. denied, 479 U.S. 825 (1986). In addition, the district judge issued an order on April 4. The single page document reads that, "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Relief from Judgment Pursuant to Rule 60(b) of defendants is denied." It is signed by the district judge, and stamped "Entered into civil docket 4/5." A copy of the order was mailed to both counsel. This clearly meets the separate document requirement under Rule 58. See Carter v. Beverly Hills Sav. and Loan Ass'n, 884 F.2d 1186, 1190 (9th Cir. 1989), cert. denied, 110 S. Ct. 3270 (1990); Beaudry Motor Co., 780 F.2d at 754-55. A notice of appeal of this decision must have been filed within 30 days of April 5. The Nolans filed their notice of appeal on May 24. Therefore, this court lacks jurisdiction over their appeal.¹ 

Defendants argue that the document filed on April 28 constitutes the final judgment of the district judge, and so the notice of appeal filed on May 24 is timely filed. The fact that the district judge subsequently issued a memorandum discussing the reasons for his decision is inconsequential since a district judge clearly has the authority to issue a document explaining his decision after issuing his final judgment.

Last, plaintiffs ask for sanctions under Fed. R. App. P. 38 for filing a frivolous appeal. Despite the fact that we do not have jurisdiction to reach the merits of the appeal, we may consider whether to impose sanctions. See Trohimovich v. Commissioner, 776 F.2d 873, 875 (9th Cir. 1985). An appeal is considered frivolous where the result is obvious or the appellant's arguments of error are wholly without merit. Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984). This appeal is not wholly without merit such that sanctions are warranted.

Defendants' appeal is DISMISSED.