An Analysis of Remittitur's Effects on the Timing to File a Notice of Appeal.

• Author: McDonald, Jennifer

"The parties are mistaken.... Until the district court either enters a final order based upon the plaintiffs' election to accept the remittitur, or proceeds to judgment after a new trial, there is nothing for this court to review." (1)

1. INTRODUCTION

   In instances where a civil jury returns a verdict so excessive that it "shocks the conscience" of the court, trial courts may utilize the conditional practice of remittitur to offer the plaintiff a choice between accepting a reduced monetary award or facing a new trial on damages. (2) In federal courts, Rule 59 of the Federal Rules of Civil Procedure (Rule 59) governs this practice, and it is procedurally conducted through posttrial motion practice. (3) Although federal and state trial courts alike have utilized remittitur consistently in the past, many aspects of the practice remain unclear and unsettled. (4)

   Rule 4(a) of the Federal Rules of Appellate Procedure (Appellate Rule 4(a)) governs the time period for filing a notice of appeal in federal appellate practice, and, upon first glance, appears rather simple. (5) Appellate Rule 4(a) requires that a party file the notice of appeal within thirty days of the date the judgment or order is entered onto the docket. (6) Nevertheless, in cases involving post-judgment Rule 59 motions--including new trials conditioned on remittitur--Appellate Rule 4(a) tolls the deadline to file a notice of appeal and computes the thirty-day appeal period from the date on the docket entry of the order disposing the motion. (7)

   When a court determines that damages awarded by a jury are excessive or not supported by the evidence, however, the Seventh Amendment prohibits the court from entering an absolute judgment for a remitted sum. (8) Instead, the trial court may allow the plaintiff to decide if he or she wants to accept the remitted judgment and forego the right to appeal, or reject the offer of remittitur and face a new trial on damages. (9) In cases where a plaintiff has accepted remittitur, it is unclear when the time period for a defendant to file a notice of appeal begins; that is, whether it commences at the point when the plaintiff files a notice of acceptance of the remitted sum, or when the trial court executes and enters an amended judgment or order on the docket. (10) This uncertainty puts defense counsel at risk of missing the appeal deadline, which unnecessarily jeopardizes clients' rights to have meritorious issues reviewed on appeal. (11)

   This Note examines the issue of when the time period commences for filing a notice of appeal after the court grants remittitur and the plaintiff accepts the adjusted jury award. (12) Section II.A explores the history of remittitur in conjunction with the evolution of the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure (collectively, Federal Rules of Procedure) with respect to posttrial motions. (13) Section II.B focuses on the finality of judgments and the separate document requirement, while Section II.C examines the nexus of Seventh Amendment constitutionality and posttrial motion practice within the analysis and application of remittitur under the Federal Rules of Civil Procedure. (14) Section II.D then discusses the current variations that exist among circuit courts addressing this issue, and ultimately Part III calls for an amendment to the Federal Rules of Procedure to resolve the ambiguity discussed in this Note. (15)

2. HISTORY

   1. Remittitur and the Federal Rules of Procedure

      Remittitur originated in the federal courts in 1822, emerging out of Blunt v. Little. (16) In Blunt, Justice Story settled upon his own interpretation of a reasonable damages award and offered that amount to the plaintiff as an alternative to a new trial. (17) Over a century after remittitur's first appearance, the Supreme Court stated, in dicta, that the constitutionality of remittitur was "doubtful." (18) Contrary to this earlier dicta, however, the Court ultimately endorsed using remittitur as a judicial tool for moderating damages in civil rights cases. (19) Today, federal courts continue to utilize remittitur as a tool to tighten control of excessive jury awards, which some commentators argue have climbed in the past several decades. (20) Though the Federal Rules of Civil Procedure do not explicitly endorse remittitur, its establishment in federal civil practice, spanning back to Blunt, has resulted in widespread application and acceptance by federal trial courts today. (21)

      In civil matters, Appellate Rule 4(a) dictates that a party must file the notice of appeal of a trial court's order or judgment within thirty days of the trial court entering that order or judgment on the docket. (22) Under the Federal Rules of Appellate Procedure, however, the filing of a party's Rule 59 motion suspends the trial court judgment's finality, and tolls the time for a party to file a notice of appeal. (23) As a result, the time to file the notice of appeal from the judgment does not begin to run again until after disposition of the Rule 59 motion itself. (24) With respect to filing an appeal, the relationship between the Federal Rules of Civil Procedure--governing the trial courts--and the Federal Rules of Appellate Procedure--governing appellate courts--has been a noted source of confusion in legal practice. (25)

      In 2002, the Advisory Committee for the Federal Rules of Civil Procedure (Advisory Committee) amended Rule 58 of the Federal Rules of Civil Procedure (Rule 58) and clarified that the trial court does not need to enter a separate document following resolution of Rule 59 or other posttrial motions referred to in Appellate Rule 4(a). (26) The Advisory Committee intended this amendment to ensure the time to file a notice of appeal does not become indefinite in circumstances where the court does not enter a separate document resolving the motions. (27) Notwithstanding this amendment, Appellate Rule 4(a) continues to state that the "time to file an appeal runs for all parties from the entry of the order" disposing of the posttrial motions, thus requiring the entry of a separate document before the appeal period commences. (28) Therefore, the Federal Rules of Procedure are ambiguous as to when the time for appeal commences, particularly in circumstances involving an interlocutory grant of remittitur, which the plaintiff must either accept or reject at some later date. (29)

   2. When Is a Final Judgment Final? The Separate Document Requirement

      Rule 58 mandates that "[e]very judgment and amended judgment must be set out in a separate document," and explains that "a separate document is not required for an order disposing of a motion ... for a new trial, or to alter or amend the judgment, under Rule 59." (30) Nevertheless, the Advisory Committee's 2002 notes provided that "if disposition of the [Rule 59] motion results in an amended judgment, the amended judgment must be set forth on a separate document." (31) Historically, the separate document requirement promotes certainty and resolves the "protracted litigation [that spawns] over a technical procedural matter." (32) In the context of remittitur, however, the finality of a conditional remittitur order under Rule 59 is complicated by a plaintiffs Seventh Amendment rights under the Re-Examination Clause. (33)

   3. The Nexus of Seventh Amendment Constitutionality and Posttrial Motion Practice

      Under the Seventh Amendment's Re-Examination Clause, which states that "no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law[,]" a trial court judge's implementation of remittitur raises significant constitutional issues. (34) Pursuant to the Re-Examination Clause, a trial court cannot unilaterally enter judgment in some amount less than the jury's verdict. (35) Instead, a trial court must couple the remittitur offer with the option of a new trial, which effectually renders the order granting remittitur interlocutory. (36)

      Despite remittitur's complicated relationship with the Re-Examination Clause, appellate courts will reverse a conditional remittitur and new trial ruling only for an abuse of discretion. (37) The Supreme Court reiterated this standard in Gasperini v. Center for Humanities, Inc., (38) holding that a trial court could apply state law standards when determining excessive verdicts, but an appellate court must use an abuse of discretion standard when reviewing those decisions. (39) Gasperini further held that limiting appellate review to an abuse of discretion standard was consistent with the Seventh Amendment's Re-Examination Clause. (40)

   4. Variations Among the Courts in Addressing Remittitur's Appellate Timeline

      Courts across the country diverge in their approach to the question of when the appeal period begins to run after a plaintiff accepts remittitur. (41) Some courts take the position that a conditional order granting remittitur becomes final, for appeal purposes, when the plaintiff accepts remittitur. (42) Yet, others view the remittitur order as an interlocutory order that may not be appealed until the trial court enters a final judgment. (43) Specifically, a majority of circuits, including the Third, Fifth, Tenth, and Eleventh Circuits, have held that the thirty-day limit to file a notice of appeal begins when the plaintiff files an acceptance of remittitur. (44) The Sixth Circuit, however, has required the entry of a separate, amended judgment before a defendant may appeal from remittitur. (45) Additionally, the circuits weighing in on this issue have reviewed various attempts by trial courts and counsel to comply with the Federal Rules of Procedure, and thus have addressed timeliness of appeals following remittitur against nonidentical procedural backdrops that may, in part, account for their divergent holdings. (46)

      One recent illustrative decision addressing the issue is Been v. O.K. Industries. (47) In Been, the plaintiff was a...