Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 87 C 9037, Ilana D. Rovner, Judge.
Coffey, Easterbrook, and Ripple, Circuit Judges. Ripple, Circuit Judge, dissenting.
EASTERBROOK, Circuit Judge
This employment-discrimination litigation was dismissed by consent on March 7, 1988, after the parties said that they thought it could be settled. The order states: "This cause is hereby dismissed with ninety days within which to reinstate." On the last day of this period, John L. Gubbins, counsel to the plaintiffs, filed this document:
NOTICE is hereby given that the plaintiffs in the instant case are pursuant to prior order of this court reinstating their complaint pro se.
A copy of the eight-page complaint was attached to the notice and bore a signature line for "Charles Adams, pro se on behalf of himself and all other plaintiffs." Neither Adams nor anyone else signed this copy of the complaint.
The district court declined to reinstate the case, writing that "the Court has come to expect unusual filings, usually late, from Gubbins. However, this 'notice of reinstatement' is by far the most unusual." The court found it defective for five reasons: (1) it purported to reinstate the action without leave of court; (2) it was filed pro se, although Gubbins had not sought to withdraw his appearance on behalf of the plaintiffs; (3) Adams purported to represent the other plaintiffs, but only a lawyer may represent someone other than himself; (4) Adams did not sign the complaint; (5) Gubbins, who signed the notice, claimed that he did not represent the plaintiffs.
Gubbins then filed both an "emergency" motion asking the court to "vacate" its order and reinstate the case, and a request to withdraw as counsel, asserting that a conflict had developed among the plaintiffs. The district judge did not let Gubbins withdraw, observing that he had not given his clients proper notice of his desire to withdraw or presented facts to substantiate his assertions. She also denied the "emergency motion to vacate", treating it as an untimely motion for leave to reinstate; she told Gubbins to file any future motion under Fed.R.Civ.P. 60(b). Gubbins filed an appeal and modest briefs; although the court set the case for oral argument, Gubbins waived his right to participate. As the district court observed, Gubbins has not been wholly diligent in protecting the position of his clients there. See, e.g., Herman v. City of Chicago, No. 88-2256 (7th Cir. Mar. 3, 1989). Although the sins of counsel often are visited on litigants, we conclude that these clients survive Mr. Gubbins's slapdash approach.
Procedural snarls often create jurisdictional questions; this case is no exception. Lever insists that there is no appellate jurisdiction. The order of March 7 dismissing the case was consensual, hence not appealable. Geaney v. Carlson, 776 F.2d 140 (7th Cir. 1985). The expiration of the 90 days -- or alternatively the order of June 8 declining to reinstate the case -- in Lever's view did no more than make the March 7 order "final". Plaintiffs may not appeal from the June 8 order, Lever continues, because it struck a notice and has no other effect, and may not appeal from the March 7 order because the time has run. (The notice of appeal was filed on July 6, 1988.) Plaintiffs' motion to reconsider the June 8 order, whatever its caption, was supported by Rule 59, see Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986), and the denial of a Rule 59 motion leaves in place the initial decision, whose "finality" is necessary to appeal; if the June 8 order is not appealable, the June 16 order is no more so. This leaves only the possibility of relief in the district court under Rule 60(b), which plaintiffs have not sought.
Whether there has been a "final decision" within the meaning of 28 U.S.C. § 1291, and if so when that decision was entered, are separate questions. An order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911, 65 S. Ct. 631 (1945). When nothing remains to be decided in the district court, the order is appealable even if formalities have not been observed. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 55 L. Ed. 2d 357, 98 S. Ct. 1117 (1978); Rosser v. Chrysler Corp., 864 F.2d 1299, 1304-06 (7th Cir. 1988); Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 463 (7th Cir. 1988); Soo Line R.R. v. Escanaba & Lake Superior R.R., 840 F.2d 546, 549 (7th Cir. 1988). This case is defunct in the district court. Plaintiffs' ability to seek relief under Rule 60(b) does not prevent appeal; quite the opposite, Rule 60(b) supposes that a final judgment has been entered. Kapco Mfg. Co. v. C & O Enterprises, Inc., 773 F.2d 151 (7th Cir. 1985). On Lever's reasoning no decision, even judgment on a jury verdict, would be appealable, for the loser could file a Rule 60(b) motion. This case has been finally resolved in the district court.
But when? The order dismissing the case was entered on March 7, and plaintiffs did not appeal within 30 days. The document entered on March 7, although a judgment, was not final and hence was not appealable. Not until June 8 did it become final. Plaintiffs' 30 days therefore started to run on June 8, was tolled by their Rule 59 motion, and recommenced on June 16. The notice of appeal filed on July 6 was timely. Fennell v. TLB Kent Co., 865 F.2d 498, 499 n. 1 (2d Cir. 1989); United States v. Mt. Vernon Memorial Estates, Inc., 734 F.2d 1230, 1233-35 (7th Cir. 1984). Cf. In re United States, 844 F.2d 1528, 1531 (11th Cir. 1988) (an order dismissing a complaint but granting leave to amend within 30 days becomes final and appealable when the 30th day passes without amendment); Brekke v. Morrow, 840 F.2d 4 (7th Cir. 1988) (suggesting this as a potentially clear jurisdictional rule when the district court denied leave to proceed in forma pauperis and allows a time within which to pay the docket fee).
Lever raises an objection to this line of reasoning: if the March 7 judgment is the subject of the appeal, Lever maintains, plaintiffs must be ejected because the notice mentions only the decisions of June 8 (which Gubbins misdated as June 6) and June 16. A notice of appeal must be precise, Oakland Scavenger Co. v. Torres, 487 U.S. 312, 108 S. Ct. 2405, 101 L. Ed. 2d 285 (1988), and it presents to the appellate court only the decision identified. Bach v. Coughlin, 508 F.2d 303 (7th Cir. 1974). True enough, but not helpful to Lever. The order of June 16 is the final decision even though the order of March 7 is the judgment, and § 1291 authorizes appeals from ...