Appealed from: U.S. District Court for the District of Minnesota; Judge Renner.
Giles S. Rich, Circuit Judge, Smith, Senior Circuit Judge, and Plager, Circuit Judge.
Appellants Timothy McKasy and CBK, Ltd. (collectively McKasy) move to dismiss the cross-appeal of appellees George in. Jurgens and Margaret M. Jurgens (collectively Jurgens) from the July 5, 1989 judgment of the United States District Court for the District of Minnesota, on the ground that Jurgens' notice of cross-appeal was filed prior to the district court's disposition of a motion for prejudgment interest. Jurgens opposes the motion. We will grant the motion and dismiss cross-appeal number 89-1658.
On June 25, 1986, Jurgens sued McKasy for selling wind socks having the appearance of various fowl, such as ducks. Jurgens accused McKasy of patent infringement, trade dress infringement under Lanham Act § 43(a), 15 U.S.C. § 1125(a)(1982), and violating the Minnesota Deceptive Trade Practices Act, Minn.Stat. § 325D.44 (MDTPA).*fn1 The case was tried to a jury which returned special verdicts in Jurgens' favor on the patent infringement and Lanham Act claims, but against Jurgens on the MDTPA claim.
The trial court advised counsel for both parties that it would postpone entry of judgment on the jury verdicts until it had received post-trial motions. On June 5, 1989, Jurgens moved for, among other things, attorney fees, prejudgment interest, and, as to the MDTPA claim, JNOV/new trial. In an order of July 5, 1989, the judge resolved substantially all pending post-trial motions, in particular awarding JNOY to Jurgens on the MDTPA claim. Importantly, however, the July 5th order explicitly deferred decision of Jurgens' request for prejudgment interest and attorney fees until further briefing could be had. Judgment was entered that same day, leaving the motions for prejudgment interest and attorney fees for later disposition.
On August 3, 1989, within 30 days of the district court's entry of judgment, McKasy filed a notice of appeal from that judgment in the district court. On August 11, 1989, within 14 days of McKasy's appeal, Jurgens filed its notice of cross-appeal. These appeals are presently sub judice as numbers 89-1645 and 89-1658 respectively. On October 27, 1989, after Jurgens had filed its notice of cross-appeal in the district court, the district court granted Jurgens' pending motion for prejudgment interest and amended the judgment of July 5, 1989 to include interest of $79,496.09. Jurgens' motion for attorney fees was denied.
On November 27, 1989, defendant McKasy filed a notice of appeal from the court's judgment of October 27, 1989.*fn2 In its letter to the district court forwarding the notice, McKasy stated that it was filing this second notice out of an abundance of caution "[because]there is some question as to the effect of a motion for prejudgment interest made prior to the entry of judgment (but which remains pending after the entry of judgment) on a notice of appeal filed after the entry of judgment but before the disposition of the pending motion." Although a copy of this letter was sent to plaintiff Jurgens, it filed no notice of cross-appeal from the second judgment.
On January 17, 1990, McKasy moved to consolidate the three appeals in this court, to accept for filing in the newly-consolidated case the briefs which already had been filed in the first appeal and cross-appeal (Nos. 89-1645 and 89-1658), and to dismiss Jurgens' cross-appeal (No. 89-1658) as untimely. A motions judge of this court, by Order of February 1, 1990, granted the motion to consolidate and accept briefs, but deferred the motion to dismiss for consideration by the present merits panel, which has now heard oral argument of these appeals on March 6, 1990. In advance of deciding the merits of McKasy's second appeal, No. 90-1105, we now consider McKasy's motion to dismiss Jurgens' cross-appeal, No. 89-1658.
The precise question before us is whether a motion for prejudgment interest filed before the formal entry of judgment constitutes a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment and renders ineffective any notice of appeal filed before the disposition of that motion. McKasy asserts that Jurgens' June 5, 1989 motion requesting prejudgment interest and other relief was a timely motion under Rule 59(e) to amend the July 5, 1989 judgment. Thus, according to Mckasy, Jurgens' notice of cross-appeal filed prior to the disposition of that motion was premature and has no effect. Since Jurgens did not file a second notice of cross-appeal, McKasy concludes that this court has no jurisdiction over Jurgens' cross-appeal.
Federal Rule of Appellate Procedure 4(a)(4) ("Rule 4(a)(4)") deals with the impact of certain post-trial motions on the jurisdiction of a court of ...