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Mouloki v. Epee

United States District Court, N.D. Illinois

June 12, 2018

Christine Ekalliipse Mouloki, Plaintiff,
v.
Marie Paule Epee et al., Defendants.

          Alexander C. Fields Johanna L. Jacob Orrick, Herrington & Sutcliffe LLP Thomas R. Hill Smith Blake Hill LLC Steven B. Towbin Christina M. Sanfelippo Shaw, Fishman, Glantz & Towbin LLC Rene A. Kathawala Orrick, Herrington & Sutcliffe LLP Attorneys for Plaintiff Christine Ekalle

          Honorable Virginia M. Kendall J.

          PLAINTIFF'S UNOPPOSED MOTION TO ENTER RULE 58 JUDGMENT BASED ON SEVENTH CIRCUIT ORDER

          Honorable Sidney I. Schenkier Magistrate Judge.

         Plaintiff respectfully requests that this court enter a Rule 58 Judgment. In support, Plaintiff states as follows:

         1. On July 18, 2017, this Court entered Judgment. See D.I. 230. Because there were outstanding issues as to the 2% interest issue, the Judgment did not include a specific amount of damages.

         2. On August 15, 2017, the Defendants filed a notice of appeal (“the first appeal”). That appeal has effectively been stayed due to the Plaintiff's motion to amend judgment and motion for attorneys' fees.

         3. On May 7, 2018, this Court issued its order on Plaintiff's motion to amend judgment and for attorney's fees. This Court did not issue an amended Rule 58 Judgment.

         4. On May 31, 2018, Defendants Marie Paul Epee and Eric Ngando Epee filed a status report with the Court of Appeals for the Seventh Circuit in the first appeal, stating: “[The Seventh Circuit] has held that opinions, like the decision issued by the district court here, are not appealable judgments. . . . While there is no further substantive issue that remains outstanding, the absence of a Rule 58 judgment indicates that either such a judgment would need to be entered or the 150-day period from the May 7, 2018 opinion would need to run before this appeal could proceed.” See Ex. A.

         5. Subsequently, on June 1, 2018, the Seventh Circuit issued an order stating that Defendants shall “advise the court whether they, or plaintiff, intend to request the entry of a Rule 58 Judgment pursuant to Fed.R.Civ.P. 58(a).” See Ex. B.

         6. On June 5, 2018, Defendants filed a second notice of appeal related to the May 7, 2018 order.

         7. Again, the Seventh Circuit ordered an update on whether this Court would enter a Rule 58 judgment: “The court, on its own initiative, ORDERS the parties to file, on or before June 13, 2018, a statement advising the court whether they intend to request the district court to enter a Rule 58 Judgment.” See Ex. C.

         8. Although Fed.R.Civ.P. 58 does not require a separate order when the court is “disposing” of a motion for attorneys' fees or a motion to amend judgment, Rule 58 does require an order granting an amended judgment to be set forth in a separate document:

The only way to reconcile the requirement that an amended judgment be set forth in a separate document with the exception to that requirement for an order disposing of a Rule 59(e) motion is by reading “disposing of a motion” as “denying a motion.” The reading is supported, though muddily, by the Committee Note to the 2002 Amendment to Rule 58. The note states that “if disposition of the [Rule 59(e)] motion results in an amended judgment”-as it did here-“the amended judgment must be set forth on a separate document” . . . . Granting a motion is one way of “disposing” of it, but when a motion to amend a judgment is granted, the result is an amended judgment, so the rule becomes incoherent if “disposing” is read literally, for then the order granting the motion both is, and is not, an order required to be set forth in a separate document. Nonsensical, or as here logically impossible, interpretations of statutes, rules, and contracts are unacceptable.

See Emp'rs Ins. of Wausau v. Titan Int'l, Inc., 400 F.3d 486, 489 (7th ...


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