United States District Court, N.D. Illinois
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.
respectfully requests that this court enter a Rule 58
Judgment. In support, Plaintiff states as follows:
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.
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.
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.
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.
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.
June 5, 2018, Defendants filed a second notice of appeal
related to the May 7, 2018 order.
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.
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 ...