Reargued En Banc May 30, 1990.
John Varhol appeals from a jury verdict that awarded him what he considers to be grossly inadequate damages. Not surprisingly, Varhol's main contention on appeal is that the damage award was too low. Preserving that issue for appeal, however, required Varhol to file a timely new trial motion in the district court. Hahn v. Becker, 588 F.2d 768, 772 (7th Cir.1979). Unfortunately Varhol served his new trial motion well after the ten-day limit Fed.R.Civ.P. 59 allows. Whether Varhol's motion was timely, and thus whether Varhol has preserved his damages issue for appeal, depends on the status of Eady v. Foerder, 381 F.2d 980 (7th Cir.1967), which held that in certain "unique circumstances" a district court may dispose of an otherwise untimely new trial motion on the merits.
The case was originally argued before a three-judge panel. The full court plus Senior Judge Eschbach reheard the case en banc to consider whether to overrule Eady. The court as constituted is evenly divided. Six judges (Judges Cummings, Posner, Coffey, Easterbrook, Manion, and Eschbach) voted to overrule Eady. Six judges (Chief Judge Bauer and Judges Wood, Cudahy, Flaum, Ripple, and Kanne) voted not to overrule Eady. Since a majority of the court as constituted did not vote to overrule Eady, it remains as the law of this circuit.
Despite not overruling Eady, the court unanimously voted to affirm the district court on all issues, including damages. Those judges who voted to overrule Eady would affirm the amount of damages on procedural grounds, not reaching the issue on the merits because of Varhol's failure to file a timely new trial motion. Those judges who voted not to overrule Eady would hold on the merits that the district court did not abuse its discretion by not awarding Varhol a new trial on damages.
The court's opinion discusses those issues on which all judges have agreed. The question of whether to overrule Eady is discussed in separate concurring opinions.
John Varhol worked as a chief of on-board services for the National Railroad Passenger Corporation (more commonly known as Amtrak, the name by which we will refer to it). Varhol's job required him to ride on Amtrak's trains during their scheduled runs. On November 12, 1983, the train on which Varhol was working derailed near Jefferson, Texas. The car in which Varhol had been riding remained upright, but Varhol was thrown to his hands and knees. He picked himself up, checked various cars, and went outside to help remove passengers from the train. A short time after the accident, while still helping to remove passengers, Varhol slipped on some rocks near the track, again falling on his hands and knees. Varhol rode a train home to Chicago the next day, working along the way; he never worked again (for Amtrak and as far as we know for anyone else).
According to Varhol, the derailment caused him severe injuries that prevented him from returning to work, and caused him great pain and suffering. Varhol sued Amtrak under the Federal Employers Liability Act (FELA), 45 U.S.C. §§ 51-60. Amtrak admitted that its negligence caused the derailment, so the only issue at trial was damages. The problem for Varhol in proving damages was that he had had Multiple Sclerosis (MS) for ten to twenty years before the derailment. Varhol claimed that the derailment had made his MS worse; Amtrak contended that Varhol's condition after the derailment resulted
After both sides presented conflicting testimony on the medical issues, the trial judge submitted the case to the jury. Among the instructions the judge gave was a series of interrogatories concerning the extent to which the derailment aggravated Varhol's MS. Those interrogatories required the jury to determine, if it could, "what percentage of [Varhol's] present condition was caused by the injuries he suffered as a result of the train derailment ...," and then asked the jury if it took that "percentage into consideration in reducing the amount of damages that you have awarded" to Varhol. The jury found that the derailment caused one percent of Varhol's condition, and awarded him $237.00 in damages.
After the jury announced its verdict, the district judge told Varhol's lawyers that they could take twenty-one days to file any post-trial motions, including a motion for a new trial. Twenty-one days later, Varhol filed his motion for new trial. Not surprisingly, Varhol's motion contended that a new trial was necessary because the jury's verdict was grossly inadequate. Varhol also challenged the trial judge's decision to submit the special interrogatories on aggravation to the jury, and the judge's decision not to admit his medical bills into evidence. The trial judge denied Varhol's motion. Varhol appeals both the denial of his motion and the underlying judgment.
The sequence of events in the district court raises a question as to our appellate jurisdiction. Varhol did not file his notice of appeal until after the district court denied his new trial motion — fifty-nine days after the clerk entered judgment on the jury's verdict. See Fed.R.Civ.P. 58. Amtrak is not an agency of the United States, so Fed.R.App.P. 4(a) required Varhol to file his notice of appeal "within 30 days after the date of the entry of judgment." The Supreme Court and this court have repeatedly emphasized that a timely notice of appeal is "mandatory and jurisdictional." E.g., Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam); Browder v. Director, Department of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560-61, 54 L.Ed.2d 521 (1978); Parke-Chapley Constr. Co. v. Cherrington, 865 F.2d 907, 908-09 (7th Cir.1989); cf., Sonicraft, Inc. v. NLRB, 814 F.2d 385 (7th Cir.1987). This means what it says: if an appellant does not file his notice of appeal on time, we cannot hear his appeal.
If a party files a timely motion for a new trial under Fed.R.Civ.P. 59(a), the time for filing a notice of appeal from the underlying judgment does not begin to run until the district court enters judgment denying the motion. Fed.R.App.P. 4(a)(4). But Varhol's new trial motion was not timely, even though he filed his motion within the twenty-one days the district court gave him. Rule 59(b) provides that "[a] motion for a new trial shall be served not later than 10 days after the entry of the judgment." Rule 6(b) provides that a district court may not extend the time for filing any Rule 59 motion. Since the trial judge could not extend the time to file the new trial motion, Varhol's new trial motion was untimely and, according to Rule 4(a)(4), should not have tolled the time for filing his notice of appeal.
There is, however, a narrow exception to the general rule prohibiting an untimely appeal. This exception, known as the "unique circumstances" doctrine, originated in Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) (per curiam). In Harris, the district court, acting before the 30-day appeal period had ended, granted
The Court extended the "unique circumstances" doctrine in Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). In Thompson, a party served a motion for a new trial twelve days after entry of judgment. The district court assured the party that his motion was timely, and went on to decide the motion on the merits. By the time the district court decided the motion, the time to appeal the underlying judgment had run. The party filed a late appeal, which this court dismissed. The Supreme Court relied on Harris to again reverse, holding that when a party performs "an act which, if properly done, postponed the deadline for filing an appeal," and the party relied on the district court's conclusion that the act had been properly done, the appeal is timely if filed within the mistaken new deadline. Id. at 387, 84 S.Ct. at 398-99. Later in the same term, the Court relied on Thompson to summarily reverse another court of appeals' dismissal of an untimely appeal. Wolfsohn v. Hankin, 376 U.S. 203, 84 S.Ct. 699, 11 L.Ed.2d 636 (1964).
This court has applied the unique circumstances doctrine a number of times; indeed, we have remarked that the doctrine is "particularly well established" in this circuit. Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 182 (7th Cir.1984). For cases invoking the doctrine to save otherwise untimely appeals, see, e.g., id. at 182-83, Textor v. Board of Regents, 711 F.2d 1387, 1390-91 (7th Cir.1983), and the cases Textor cites. The unique circumstances doctrine as applied in Thompson has been criticized and its continuing vitality questioned. See Parke-Chapley, 865 F.2d at 913 n. 6; Sonicraft v. NLRB, 814 F.2d 385, 387 (7th Cir.1987); Smith v. Evans, 853 F.2d 155, 160-61 (3d Cir.1988); see also Houston v. Lack, 487 U.S. 266, 282, 108 S.Ct. 2379, 2388-89, 101 L.Ed.2d 245 (1988) (Justice Scalia, joined by Chief Justice Rehnquist, and Justices O'Connor and Kennedy, dissenting). But we are bound to follow Thompson unless we are "almost certain that the [Supreme Court] would repudiate" it if given the chance. See Olson v. Paine, Weber, Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir.1986). Despite the questions as to Thompson's continuing vitality, we will not speculate as to Thompson's demise. Such speculation would be especially inappropriate given that the very term after Lack, a unanimous Court rejected a unique circumstances argument by distinguishing rather than overruling Thompson. See Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 992-93, 103 L.Ed.2d 146 (1989). While this is not conclusive proof that a Court majority would not overrule Thompson if necessary to decide a case, the fact that the Court in Osterneck chose not to overrule Thompson makes it overly bold for us to repudiate Thompson. Therefore, until the Supreme Court says otherwise, Thompson and the unique circumstances doctrine it pronounced remain good law, and we will continue to follow it, as we must. Cf. Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1362-65 (3d Cir.1990).
It is difficult to distinguish this case from Green. It is true that in this case, the district court told Varhol in open court he could have 21 days to file any Rule 59 motions. But it hardly seems that reliance on a judge's spoken order in open court is any more reasonable than reliance on the court's written orders. It is also true that in Green a magistrate rather than the district court judge who ultimately decided the case entered the order extending the time to file the Rule 59 motion. See id. But a magistrate is a judicial officer, and there is nothing in Green to suggest that the magistrate was not properly empowered under 28 U.S.C. § 636(b) to consider matters relating to post-trial motions.
We do not have to decide whether Green controls this case, however, because there is an alternative basis for appellate jurisdiction. After the thirty days for appeal had run, Varhol recognized his jurisdictional problem and filed a timely motion under Fed.R.App.P. 4(a)(5) to extend the time to appeal. Rule 4(a)(5) allows such extensions after the original thirty-day period has ended if the court finds that the failure to file a timely notice of appeal resulted from "excusable neglect." See Lorenzen v. Employees Retirement Plan of Sperry & Hutchinson, 896 F.2d 228, 231-32 (7th Cir.1990); Parke-Chapley, 865 F.2d at 909-11; Redfield v. Continental Cas. Co., 818 F.2d 596, 601 (7th Cir.1987). The trial judge found that Varhol's failure to file a timely notice of appeal resulted from his reliance on the extension of time to file the new trial motion and the consideration of that motion on the merits. The judge found this to be excusable neglect, and granted Varhol more time to file his notice of appeal.
One might reasonably wonder how Varhol's reliance could be "excusable." After all, Rules 59 and 6(b), and Fed.R.App.P. 4(a)(4) lead clearly to the conclusion that an untimely Rule 59 motion will not toll the time to appeal no matter what the district court may say or do. Surely a lawyer practicing in federal court ought to know the federal rules. Cf. United States v. Beacon Bay Enterprises Inc., 840 F.2d 921 (Temp.Emer.Ct.App.1988). Attorney unfamiliarity with or misunderstanding of the federal rules, except in rare instances, is generally not excusable neglect under Rule 4(a)(5). See Parke-Chapley, 865 F.2d at 912-13.
Still, the trial judge did find excusable neglect in this case, and we generally give deference to that finding. See Redfield, 818 F.2d at 602; see also Lorenzen, 896 F.2d at 232-33. Amtrak has not challenged that finding. Moreover, this court relied on the fact that the district court had granted Varhol's Rule 4(a)(5) motion in denying Amtrak's motion to dismiss this appeal. Varhol v. National Railroad Passenger Corp., No. 88-2207, (7th Cir. Aug. 8, 1988) (unpublished order). And despite the rules' clarity, it is at least arguable that reliance on a trial judge's extension of time to file a Rule 59 motion and subsequent consideration of that motion on the merits could constitute excusable neglect: it is understandable that litigants would put great stock in what federal judges say about procedural matters (even if what the federal judges say may turn out to be wrong). The circumstances in this case are
The real question here is not whether we would have found Varhol's reliance to be excusable neglect but rather whether we should second-guess the trial judge's decision that it was. In this case, we think not. We are not saying that we will not overturn a district court's finding of excusable neglect where the party's excuse is so far afield (for example, counsel simply forgetting on day thirty to file the notice) that granting the extension would be a patent abuse of discretion. (Compare the discussion in Lorenzen, 896 F.2d at 232-33, concerning the types of mistakes that may warrant lenity under Rule 4(a)(5).) Allowing extension on frivolous grounds would turn Rule 4(a)(5) into a device to convert automatically the thirty-day appeal period into a sixty-day period, something the rule was not meant to be. See In re O.P.M. Leasing Services, 769 F.2d 911, 917 (2d Cir.1985) (Friendly, J.). Nor are we saying that the district court would have abused its discretion if it had found that Varhol's reliance was not excusable neglect. See Lorenzen, 896 F.2d at 233. But because it is at least arguable that Varhol's actions could constitute excusable neglect, Amtrak has not challenged the district court's finding that it was, and an earlier ruling of this court has implicitly approved that finding, we will not second-guess the district court's finding of excusable neglect in this case. Since the district court did not abuse its discretion in granting Varhol an extension of time to file his appeal, and Varhol filed his appeal within the extended time granted, we have jurisdiction over this appeal even if Thompson's unique circumstances doctrine does not apply here.
On the merits, Varhol raises several issues besides the amount of damages. Varhol first complains that it was error for the district court to submit to the jury the special interrogatories concerning aggravation of his preexisting MS. As we have noted, those interrogatories essentially told the jury to determine what portion of Varhol's condition, as it existed at the time of trial, resulted from the derailment, and, if it could determine that portion, to take it into account in determining damages. Varhol complains that the interrogatory was inconsistent with the aggravation instruction the court gave the jury (which was, with slight modifications, a Fifth Circuit pattern instruction); according to Varhol, that instruction did not allow the jury to apportion damages for the aggravation of his MS between aggravation caused and not caused by the derailment. Varhol also complains that the interrogatory failed to instruct the jury that it could award damages resulting from the derailment (for example, pain and suffering from his injuries suffered in the derailment, emotional distress from the derailment, and the effects of a head injury he allegedly suffered in the derailment) separately from the aggravation of his MS. As a result of this omission, Varhol claims that the interrogatory unduly focused the jury's attention on aggravation, and confused the jury by essentially instructing the jurors that damages from aggravation of the MS were the only damages they could award.
District courts have broad discretion under Fed.R.Civ.P. 49(b) to submit special interrogatories
Varhol's arguments about juror confusion and overemphasis on aggravation damages are equally unconvincing. Nothing in the special interrogatory told the jurors that aggravation was the only damage component they could award and the trial judge fully instructed the jury on every element of damages Varhol claimed. The district court also instructed the jury to follow all his instructions, and not to single any out as more important than the others. Moreover, at the instruction conference the judge directed Varhol's lawyers to draft the interrogatories. If his lawyers were concerned about the interrogatories possibly disregarding other damages, they should have drafted the interrogatories to get around that problem. But the interrogatories, as Varhol's counsel submitted them, did not include any warning to the jurors not to disregard other damages, and Varhol's lawyers did not mention this possible problem to the judge. At all events, we think the instructions as a whole fully and fairly informed the jury about Varhol's damage theories. If any problem did exist with jury confusion or overemphasis on aggravation, however, Varhol's lawyers took no steps to avoid these problems at trial, so he cannot complain about them on appeal.
Varhol next raises a series of alleged errors by the trial judge in admitting and refusing to admit certain evidence. Varhol first contends that the judge erred by refusing to admit Varhol's bills for medical expenses incurred before trial. All these bills had been paid by Travelers Insurance Group Policy GA-23000, a policy for which Amtrak, not Varhol, paid the premiums. The trial judge found that because the bills had been paid by this policy, Varhol could not recover those expenses; therefore, the judge ruled that evidence of the amounts was inadmissible because the amounts were irrelevant and because of the possibility that the jury might misuse the amounts in calculating damages (for example, by deciding that trebling the bills would be a good way to fix damages).
Varhol does not contend that he was entitled to collect the medical expenses paid by the Travelers' policy, so we assume, without deciding, that he was not.
Varhol next contends that the district court erred by refusing to admit his tendered Exhibit 23. Exhibit 23 was a 1971 letter from a doctor at the Mayo Clinic to Varhol. During discovery, Varhol had given Amtrak a number of documents from the Mayo Clinic; by mistake, he did not include Exhibit 23 among them. When Varhol tried to introduce the letter, Amtrak objected, claiming surprise because it had never seen the letter. The district court excluded the letter for this reason. Varhol offers no authority for his argument that the court should have admitted the letter, so we could hold that he has waived this issue. See Fed.R.App.P. 28(a)(4); Beard v. Whitley County REMC, 840 F.2d 405, 408 (7th Cir.1988). But in any event, we see no abuse of discretion in refusing to admit a document that a party never submitted to his opponent before trial (even if by mistake), despite a discovery request by the opponent.
Varhol's third alleged evidentiary error was the district court's decision to allow Robert Fitzgerald, an Amtrak employee, to testify in Amtrak's case about matters beyond authenticating documents. Varhol claims he was surprised by Fitzgerald's testimony because Amtrak did not list Fitzgerald in the pretrial order; instead, Amtrak stated only that it would call a "Representative of National Railroad Passenger Corp." Again, Varhol has cited no authority to support his argument. But, in any event, Varhol's claim of surprise rings false. While Fitzgerald did not merely authenticate records, all his testimony concerned records that Amtrak had given Varhol in discovery. Moreover, Varhol himself had called Fitzgerald as a witness for the same reason Amtrak did — to authenticate and explain Varhol's employment records. We find no abuse of discretion in allowing Fitzgerald to do the same thing for Amtrak.
Varhol's final evidentiary challenge is his most substantial. Over Varhol's objection, the trial judge allowed Amtrak to cross-examine Varhol about a suspension from work he had received for purchasing stolen train tickets from his boss. The district court allowed the cross-examination under Fed.R.Evid. 608(b), which allows a questioner cross-examining a witness to attack the witness's credibility by inquiring into specific instances of misconduct by the witness that are "probative of truthfulness or untruthfulness."
Amtrak's counsel asked Varhol the following questions during cross-examination:
Although Varhol testified on redirect that he did not know the tickets were stolen when he bought them, we think the questions and answers about the incident fairly raise the inference that Varhol knowingly bought and used stolen tickets. The fact that Varhol admitted "guilt" and paid restitution so indicates: why admit guilt or pay restitution if you are not guilty of anything? The jury did not have to draw this inference (and for all we know, it may not have), but it could have. The question, therefore, is whether Varhol's alleged conduct — buying and using stolen tickets —
Varhol insists that Rule 608(b) only allows questioning about acts that involve fraud or deceit — for example, perjury, subornation of perjury, false statement, embezzlement, and false pretenses. See United States v. Amahia, 825 F.2d 177, 181 (8th Cir.1987). Our own cases, however, do not use language that cabins cross-examination under Rule 608(b) in this way. See, e.g., United States v. Holt, 817 F.2d 1264, 1272-73 (7th Cir.1987); Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591, 605 (7th Cir.1985); United States v. Covelli, 738 F.2d 847, 856 (7th Cir.1984). But the fact that none of these cases has specifically limited Rule 608(b) questioning to acts that involve fraud or deceit is not very helpful to us here because these cases all involved questioning about acts that involved some element of deceit or false statement.
The reason for allowing cross-examination under Rule 608(b) is to allow a party to attempt to cast doubt on a witness's reliability for telling the truth. Acts involving fraud or deceit clearly raise such doubt, while certain acts, such as murder, assault, or battery normally do not. But stealing and receiving stolen goods fall into a gray area. Stealing does not necessarily involve false statements or deceit, so it does not necessarily go directly to a witness's propensity to lie. But people generally regard acts such as stealing (and receiving and using stolen property) as acts that "reflect adversely on a man's honesty and integrity." Gordon v. United States, 383 F.2d 936, 940 (D.C.Cir.1967) (Burger, J.). In addition, such acts
David W. Louisell and Christopher B. Mueller, 3 Federal Evidence § 305, at 226 (1979) (quoting Ladd, Credibility Tests — Current Trends, 89 U.Pa.L.Rev. 166, 180 (1940)). As a practical matter, it is difficult to distinguish between untruthfulness and dishonesty. See id.
The question whether to allow questioning about acts such as receiving and using stolen property under Rule 608(b) is a close one. But we think that the connection between such acts and honesty and integrity, and between honesty and integrity and credibility, is sufficient to allow admission, subject to the district court judge's sound exercise of discretion. In this case, Varhol's credibility was a key issue. The stolen ticket evidence did arguably reflect upon his honesty, and Varhol's counsel had the opportunity to minimize any adverse inference on redirect examination. Therefore, we do not think it was an abuse of discretion to allow Amtrak to attack Varhol's credibility by cross-examining Varhol about the stolen tickets.
There is one further complication here, though: the trial judge never told the jury that it was to consider the evidence about the stolen tickets only in determining Varhol's credibility. Varhol insists that we must reverse because of the district court's failure to give a limiting instruction. Varhol, however, has not preserved this issue. At the time Amtrak asked the questions, Varhol's lawyers stood silent and mentioned nothing about a limiting instruction. In fact, at a sidebar immediately before Amtrak asked the questions (a particularly appropriate time to remind the judge about a limiting instruction), Varhol's counsel did not mention a limiting instruction.
It is true, as Varhol notes, that his counsel did ask the district judge several times during trial for a limiting instruction, and that the judge stated that he would give one. But all these requests came during arguments on Varhol's motion in limine, long before Amtrak actually asked the questions. We do not know the reason for Varhol's counsel's failure to speak up at the moment of truth: it could have been a tactical decision not to draw any more attention to the issue; it also could have been an oversight. Whatever the reason, counsel's
For the reasons stated above, we affirm the district court's judgment.
FLAUM, Circuit Judge, joined by BAUER, Chief Judge, WOOD, Jr., CUDAHY, RIPPLE and KANNE, Circuit Judges, concurring.
John Varhol won a jury verdict against Amtrak for $237. Immediately after the court discharged the jury, counsel for Varhol informed the district judge that he wished to file a post-trial motion for a new trial. With no objection from Amtrak, the court gave him 21 days. The next day, the court entered the jury verdict. On the twenty-first day, Varhol filed a motion for a new trial in accordance with the court's order.
In its reply, Amtrak responded with Rules 59(b) and 6(b). Rule 59(b) provides 10 days for motions for new trials and Rule 6(b) prohibits the district court from extending that time. Under these rules, the motion was not timely despite the court's purported extension of time. At the hearing on the motion, the court stated to Varhol's counsel that "to the extent you find yourself in a problem, it certainly is my fault, not yours.... I certainly did not intend to have you lose any appellate right by giving you twenty-one days within which to file post-trial motions."
Varhol's counsel was an experienced state trial lawyer. In Illinois state court, the trial judge can extend the time for a motion for a new trial. 110 Ill.Stat. ¶ 2-1202(b). Varhol's counsel should have refamiliarized himself with the Federal Rules before the trial, but when the court granted 21 days to file the motion without objection from opposing counsel, Varhol relied on the judge's knowledge of the Rules. Varhol's counsel made an error, but it was a human error and not a procedurally fatal error. An experienced district court also made the error.
Our decision in Eady v. Foerder, 381 F.2d 980 (7th Cir.1967), was designed to deal with this precise situation. "Eady holds that when a judge extends the time within which to file an application for a new trial, and counsel relies to his detriment on that extension, the `unique circumstances' of this reliance allow the court to dispose of the motion before it." Bailey v. Sharp, 782 F.2d 1366, 1368 (7th Cir.1986) (per curiam). If Eady is good law, then the trial court could hear the motion for a new trial and we can consider the merits of Varhol's damages arguments.
Eady has survived twenty-three years virtually without criticism except from those who would overrule it today. It has been favorably commented upon by scholars and was approved by this Court only four years ago. Bailey, 782 F.2d at 1368. It is consistent with the Federal Rules, Supreme Court precedent, and the principles of justice. Logic and the principles of stare decisis demand that we not overrule it and we do not. Eady remains the law of this Circuit and, therefore, we can reach the merits of Varhol's damages claim.
At first glance, Eady seems to conflict with the plain language of the Rules. Rule 6 flatly prohibits extensions of the 10-day time period to file a motion for a new trial. Textile Banking Co. v. Rentschler, 657 F.2d 844, 849 (7th Cir.1981). This rule is, in some sense, jurisdictional, in that it places a limit on the district court's power to entertain a motion for a new trial. See, e.g., Branion v. Gramly, 855 F.2d 1256, 1259 (7th Cir.1988). On this basis, Judge Manion and the judges who join him would overrule Eady. He reasons that the district court has no power to hear the motion; Eady, he concludes, impermissibly allows the court to do so.
But Judge Manion's syllogism does not lead to his conclusion. He claims that: (1) the district court was without power to extend the time; thus (2) the motion for the new trial was untimely and outside the
With subject matter jurisdiction, of course, the limits on power are absolute. If there is no subject matter jurisdiction, nothing the parties do can give the court power to hear the case. Subject matter jurisdiction is not, however, necessarily the appropriate approach to the 10-day time deadline of Rule 59(b). Subject matter jurisdiction is controlled by a statute explicitly labeled as such. 28 U.S.C. § 1330 et seq. Neither Rule 59 nor Rule 6 are styled as jurisdictional. Moreover, subject matter jurisdiction is informed by concerns for federalism. No such concern is present here. And Judge Manion offers no good reason for treating the time limit of Rule 59(b) like subject matter jurisdiction.
Given that the nature of the jurisdictional deadline of Rule 59(b) can logically fall anywhere on this continuum, I believe there are good reasons for affirming Eady's interpretation. Rule 1 requires that the Rules "be construed to secure the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. As Professors Wright and Miller have noted, Eady is consistent with this mandate because it serves these interests. See 4A Wright & Miller, Federal Practice and Procedure § 1168, at 504-05 (2d ed. 1987).
Justice is served by applying Eady to the present case. Varhol was informed by the judge that the time deadline could be extended and he relied on the deadline in good faith. Amtrak did not raise any objection at the time. If Amtrak was as uninformed as Varhol, then the incentive for knowing the Rules to which Judge Manion alludes is not created by giving Amtrak the benefit of both parties' mistake. Alternatively, Amtrak knew the rules all along, and attempted to gain an advantage by keeping silent while Varhol erroneously relied on the judge and then springing the deadline on him once it was past. "The Federal Rules [however,] reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits."
Moreover, Eady is consistent with the history of the Federal Rules. As one noted scholar and jurist has noted, "[t]he advent of the Federal Rules swung the courthouse door open. They permitted the full development of public law cases and the prompt consideration of the merits. Parties could no longer rely on clever maneuvers, but were required to make their best cases on the merits and face a dispositive ruling or a trial." Weinstein, After Fifty Years of the Federal Rules of Civil Procedure: Are the Barriers to Justice Being Raised?, 137 U.Pa.L.Rev. 1901, 1920 (1989); see also Conley, 355 U.S. at 48, 78 S.Ct. at 103. When enacting the Rules, "the rulemakers wanted to escape the rigidities and technicalities that had attended the development of procedural codes...." Shapiro, Federal Rule 16: A Look at the Theory and Practice of Rulemaking, 137 U.Pa.L.Rev., 1969, 1975 (1989); see also Burbank, The Rules Enabling Act of 1934, 130 U.Pa.L.Rev. 1015 (1982); Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U.Pa.L.Rev. 909 (1987). Eady fulfills this promise: it avoids an overly rigid interpretation of the Rules and encourages courts to reach the merits of the dispute.
Eady takes a middle course between treating the time deadlines like personal jurisdictional limits and subject matter jurisdictional limits on power.
Moreover, Eady is consistent with the manner in which the Supreme Court has interpreted time deadlines under the Rules.
Eady is also consistent with Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964) and Harris Lines v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). We recognized in Amax Coal v. Director, OWCP, U.S. Dept. of Labor, 892 F.2d 578 (7th Cir.1989), that Eady "derive[d] from the analogous decisions in Harris Lines and Thompson where the Supreme Court recognized an equitable exception to the requirement that notices of appeal be filed on time — when counsel relies on the trial court's assurance that the time to file the notice of appeal has been extended, either by its discretionary power to do so under FRCP 59(a) or by erroneously attempting to extend the time for filing post-trial motions which toll the time for filing notice of appeal." Id. at 581 n. 5 (citations omitted). I agree with Judge Manion that Eady is not compelled by Thompson, but I believe that it is consistent with it. Both cases recognize room for equity in the Rules where a party relies on a representation by the district judge. Thompson excuses precisely the same mistake as Eady: a mutual mistake by the district court and the parties about the power of the court to extend the time for a Rule 59 motion. Moreover, Thompson confirms that the time periods in the Rules should not be interpreted like the rules governing subject matter jurisdiction.
Judge Manion attempts to distinguish Thompson by noting that in Thompson a mechanism exists for achieving the outcome that the district court was trying to reach, so where the district judge could have reached the same end by a proper procedure, we should not penalize the parties where it did so through an improper procedure. This argument proves too much, however, as Judge Manion himself points out that the trial judge could have created a de facto 21-day filing deadline in our case by simply withholding the formal entry of judgement for 11 days. There is, therefore, a mechanism for achieving the same end. Judge Manion also attempts to distinguish Thompson by stating that Thompson merely covers cases of mutual mistake by the district court and the parties, but that in our situation, there should be no mutual mistakes because the district court has no power to hear an untimely motion. Yet Thompson involves the same mistake as Eady. The mistake in Thompson cannot be excusable and the mistake in Eady inexcusable. The only difference between the cases is that they deal with the effects of the same mistake on different courts. Yet I discern no principled reason for guarding the jurisdiction of trial courts more jealously than that of appellate courts.
Eady has also stood the test of time. It has survived over twenty years of trouble-free life. Judge Manion's rationales for rejecting Eady existed in 1967 when the case was decided and no new or compelling reasons have been advanced for discarding it at this date.
In sum, Eady is consistent with a plain reading of the Rules, including Rule 1, which, like Rule 6(b), is an act of Congress which we cannot ignore. It is supported by Supreme Court precedent, the history of the Rules, and the principles of stare decisis. Eady, therefore, remains the law of this Circuit.
Under Eady, we can reach the merits of Varhol's appeal on the denial of the motion for a new trial. An order denying a motion for a new trial is committed to the sound discretion of the district court and, on review, the district court will not be overturned "except where exceptional circumstances show a clear abuse of discretion." Forrester v. White, 846 F.2d 29 (7th Cir.1988). In determining whether to grant a new trial, the district court must decide if the verdict is against the manifest weight of the evidence. Id.
The district court denied the motion because it found that the evidence established that Varhol's injuries were due to the normal symptoms and progression of multiple sclerosis. The same injuries Varhol claims were the result of the accident — leg problems, dizziness, and headaches — could have been symptoms of multiple sclerosis which Varhol contracted in 1960. The jury was entitled to consider the probability that Varhol's injuries resulted from a pre-existing disease. See Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 973 (7th Cir.1983). Given the mitigating evidence, I cannot say that the jury's verdict was against the manifest weight of the evidence. I conclude, therefore, that the district court's decision not to grant a new trial should be affirmed.
MANION, Circuit Judge, joined by CUMMINGS, POSNER, COFFEY, and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge, concurring.
The main question we face in this case is whether the district court properly considered the merits of Varhol's new trial motion. The answer, based strictly on the Federal Rules, would appear to be a simple, and resounding, "No!". Rule 59 allows only ten days to serve a new trial motion. Rule 6(b) forbids district courts from extending that time, so any extension does not make an otherwise untimely motion timely. Textile Banking Co. v. Rentschler, 657 F.2d 844, 849 (7th Cir.1981). We have repeatedly held that district courts have no power to grant untimely Rule 59 motions. E.g., Branion v. Gramly, 855 F.2d 1256, 1259 (7th Cir.1988); Bailey v. Sharp, 782 F.2d 1366, 1369 (7th Cir.1986); Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1112 (7th Cir.1984); Hulson v. Atchison, Topeka & Santa Fe Ry. Co., 289 F.2d 726, 729 (7th Cir.1961). Accord Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1325 (5th Cir.1985). Since Varhol's new trial motion was untimely (despite the trial judge's purported extension of time to file it), it would appear the district court had no power to, and should not have, considered the motion on its merits. If the trial judge did not have the
This reasoning, however, runs head-on into this court's decision in Eady v. Foerder, 381 F.2d 980 (7th Cir.1967). In Eady, the district court told counsel for the losing party that he could have thirty days to file any post-trial motions. Counsel, relying on this statement, filed a Rule 59 motion 28 days after entry of judgment. The district court granted the motion. On appeal, the appellant argued that the district court had no power to grant the motion because it was untimely. Id. at 980-81. We rejected this argument, relying on Harris and Wolfsohn (and thus, impliedly, on Thompson, the case on which Wolfsohn relied) to hold that where a district court extends the ten-day period to file a new trial motion, and a party relies on that extension in filing an untimely motion, the unique circumstances of that reliance allow the district court to consider the motion's merits. Id. at 981. We have since interpreted Eady to apply only where a party actually relies on the extension; that is, where the party is not aware that the court cannot extend the time to file the motion. See Bailey, 782 F.2d at 1368-69. Amtrak does not contend that Varhol's attorneys were aware that the trial judge could not extend the time for filing his new trial motion, and thus we assume that they did actually rely on the district court's extension. Therefore, the circumstances in this case fall squarely into Eady's judge-made exception to Rule 59's time limit.
Whether or not we consider Varhol's damages argument on the merits depends on whether Eady should remain the law in this circuit. It should not. There are powerful reasons to overrule Eady, the most important being that Eady is inconsistent with the federal rules. In Pavelic & LeFlore v. Marvel Entertainment Corp., ___ U.S. ___, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989), the Supreme Court recently reiterated that courts are to give the federal rules their "plain meaning." Id. 110 S.Ct. at 458. As we have seen, Rules 59 and 6 are as plain as can be: Rule 59 gives a litigant ten days to serve post-trial motions, and Rule 6 denies the district court the authority to extend that time limit.
It follows from this that the district court may not rule on an untimely Rule 59 motion. The assertion that Rules 59 and 6 do not explicitly spell out the consequences of a late motion, and that we should thus treat Rule 59's deadline not as a requirement for subject matter jurisdiction but rather as akin to a requirement of personal jurisdiction or a statute of limitations (both of which can be waived) does not change this result. The problem is that Eady allows — in fact, depends on — the district court extending the time to file a Rule 59 motion, which is exactly what Rule 6 expressly prohibits. The rules' drafters did not have to spell out the consequences of a late-filed Rule 59 motion; those consequences flow naturally from Rule 6's prohibition of extension of time to file Rule 59 motions. Even Professors Wright and Miller admit that "an intelligent reading of the rules [makes] it quite clear that the district court has no authority ... to entertain a new trial motion [served] more than ten days following entry of judgment...." 4A Charles Alan Wright & Arthur Miller, Federal Practice and Procedure § 1168, at 506 (2d ed. 1987).
If district courts really need a mechanism to extend the time for filing post-trial motions after entering a judgment, it is up to the Supreme Court and Congress, through the procedure established by the Rules Enabling Act, 28 U.S.C. § 2072, to provide that mechanism.
Eady's inconsistency with the federal rules, and the damage Eady does to the rulemaking process established by Congress and the judiciary are themselves compelling reasons to overrule Eady. But there are other reasons as well. Eady, as we interpreted it in Bailey v. Sharp, 782 F.2d 1366 (7th Cir.1986), applies only to lawyers who have never heard of the case and are ignorant of the rules prohibiting extensions of time to file post-trial motions.
Moreover, since application of Eady turns on a lawyer's knowledge of the law, the district court's jurisdiction over a post-trial motion could turn on a detailed factual inquiry into counsel's knowledge, thought processes, and even honesty (is the lawyer really unaware, or is he just pretending?). Rules 59 and 6 are clear and simple, as they should be. Courts and litigants can know what is properly before a court without bogging down in procedural minutiae. Detailed factual inquiries into an attorney's state of mind such as Eady may require, besides being unseemly, disrupt that clarity and simplicity. See Bailey, 782 F.2d at 1373 (concurring opinion).
If the Supreme Court's unique circumstances cases compelled the result in Eady, we would be bound to uphold Eady despite the reasons for overruling it. But Harris and Thompson do not compel Eady, and probably do not even support it. Harris and Thompson both depended on the fact that certain things that occur in the district court may extend the time for filing a notice of appeal. The question in those cases was how a mutual mistake between the judge and the parties about the existence of that time extending act — in Harris, a possibly erroneous finding of excusable neglect and extension of time to appeal before the original appeal period had run, and in Thompson an erroneous extension of time to file a Rule 59 motion — would affect the appeal. See Bailey, 782 F.2d at 1369-70 (concurring opinion). The Court in Harris and Thompson merely held, in effect, that courts of appeals should not penalize litigants when such mutual mistakes occur.
There is no rule allowing district court judges to extend the time to file post-trial motions, and Rule 6 flatly prohibits extensions. There can be no mutual mistake about how an erroneous extension would affect the court's ability to hear a post-trial motion: the district court has no power to hear an untimely motion. Thompson stands for the proposition that a district court's mistake, where a mechanism exists for extending the time to appeal, should not deprive the court of appeals of jurisdiction. Eady, however, allows the district court to expand its own power to hear a post-trial motion beyond the limits the federal rules set and in the face of a rule that expressly disallows such extensions. Nothing in Thompson or Harris (or any other Supreme Court case we know of) suggests that courts should be able to expand their own power simply by asserting that power. Indeed, far from being compelled by any Supreme Court precedent, Eady is contrary to a number of recent Court cases holding that courts are to apply the federal rules as
The Second Circuit has recognized that Thompson does not support Eady's holding. In Long Island Radio Co. v. NLRB, 841 F.2d 474, 478-79 (2d Cir.1988), the court rejected an argument, based on Thompson's unique circumstances doctrine, that the National Labor Relations Board had jurisdiction to consider an untimely attorney's fee application because the Board had mistakenly granted an extension of time to file the application. The Second Circuit declined to extend Thompson, reasoning that "there was no suggestion in Thompson that the district court, in misstating the timeliness of the new-trial motion, had succeeded in enlarging its own jurisdiction to entertain that motion." Id. at 478-79. The Second Circuit cited not Eady, but the concurrence in Bailey (which criticized and urged overruling Eady), and the Second Circuit analysis effectively repudiated Eady. Thus, Eady puts us in conflict with another circuit.
Since Eady is inconsistent with the federal rules and not compelled by any Supreme Court precedent, the only reason left for not overruling it is stare decisis, or as our colleagues put it, "the test of time." But stare decisis does not compel us to uphold Eady merely because it has been around a long time. Judge Flaum's concurrence in this case is the first attempt by any judge in this (or any other) circuit to attempt to supply a principled basis for Eady's holding. Eady itself offered no rationale for its holding other than citations to Harris and Wolfsohn. The panel in Eady completely ignored the federal rules (around which any discussion of the problem faced in Eady and here must turn), and failed to present or analyze any arguments for or against its holding. Eady also ignored two earlier decisions from this court, Hulson v. Atchison, Topeka & Santa Fe Ry. Co., 289 F.2d 726 (1961), and Nugent v. Yellow Cab Co., 295 F.2d 794 (1961), both of which held that district courts had no power to rule on untimely Rule 59 motions despite the fact that the district courts in those cases had expressly extended the time for filing those motions. Given that no basis for Eady's holding has ever been advanced in this circuit until today, it is at best creative to suggest that stare decisis compels us to uphold Eady because "the rationales for rejecting Eady existed in 1967 when the case was decided." It is also ironic to rely on stare decisis, given Eady's treatment (or, more accurately, nontreatment) of Hulson and Nugent, which only six years earlier had rejected the very approach Eady took. What happened to stare decisis then?
As for the "test of time": Despite having more than twenty years to pick up support, no other case, in this circuit or other circuits, has followed Eady. (There is a passing reference to Eady in Mayer v. Angelica, 790 F.2d 1315, 1338 (7th Cir.1988), that could be read as approving Eady, but Mayer specifically bypassed the procedural problem so its reference to Eady is dictum.) See Bailey, 782 F.2d at 1370 (concurring opinion); 4A Wright & Miller, supra, § 1168, at 505 (stating that "[n]o other circuit has followed the result in Eady," a statement that the 1990 pocket part does not retract, and that our colleagues' concurrence
Moreover, Eady is not inconsistent with Hulson v. Atchison, Topeka & Santa Fe Ry. Co., 289 F.2d 726 (1961) and Nugent v. Yellow Cab Co., 295 F.2d 794 (1961). Both those cases hold that district courts cannot extend time under Rule 59(b). Eady holds that when the district court inadvertently does so and counsel relies on the court to its detriment, equity demands that we allow the court to hear the Rule 59 motion. I believe that these decisions are consistent in the same way that Eady is consistent with a strict reading of Rules 6 and 59, as outlined in my opinion. At most, Eady creates an exception to the rule in those cases, not a wholesale overruling, which is the course Judge Manion would take today. Moreover, even if Eady overruled those cases, the fact that this Court once overruled a decision is not grounds for displacing the principle of stare decisis, the mandate that we leave decisions in place absent new and compelling reasons for overruling them.
Finally, Eady does not stand alone. See Bailey, 782 F.2d at 1368, Amax Coal, 892 F.2d at 581 n. 5, Mayer v. Angelica, 790 F.2d 1315, 1338 (7th Cir.1986), cert. denied, 479 U.S. 1037, 107 S.Ct. 891, 93 L.Ed.2d 843 (1987), and Parisie v. Greer, 705 F.2d 882, 898 (7th Cir.1983) (en banc) (Swygert, J., concurring), for cases citing Eady with approval. The Third Circuit has adopted a similar rule in the context of motions for a reduction of sentence. See Government of the Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979) (per curiam) (motion for reduction of sentence filed beyond the 120-day deadline can be considered if the parties relied on the district court). Noted scholars have commented favorably on Eady. See, e.g., 4A Wright & Miller, Federal Practice and Procedure § 1168, at 504-05 (2d ed. 1987). That we have not had to invoke Eady between 1967 and today stands testament only to the apparent competence of the district courts in complying with Rule 6, and is not an implied criticism of Eady.
Id. at 1368. Language speaking about the allocation of decision-making authority between trial and appellate courts is the language of subject matter jurisdiction. The approach Judge Flaum's concurrence takes would at least require us to question if not overrule Bailey, a decision on which his concurrence relies.
Moreover, the fact that Amtrak's counsel may have been uninformed, or may even have kept silent to spring a procedural trap does not, as Judge Flaum's concurrence implies, excuse Varhol's lawyer's failure to know the rules. Even in procedural matters, two wrongs do not make a right.