In Brown v. Fifth Third Bank, 730 F.3d 698 (7th Cir. 2013), Judge Richard Posner, as motions judge, in an opinion not binding on the panel hearing the merits of the case, denied a motion by the defendant, Fifth Third Bank, to dismiss the appeal as untimely. The judge denied the motion even though the appellant filed her notice of appeal 113 days after a clerk’s docket entry reciting the district court’s dismissal of her complaint.

The docket entry in question was captioned “Notification of Docket Entry” and referred to the court’s separate “Memorandum Opinion and Order” dismissing the complaint with prejudice. Id. at 700. The motion to dismiss the appeal turned on whether the clerk’s docket entry satisfied the requirement under Fed. R. Civ. P. 58 that a district court's judgment be set forth in a separate document. Judge Posner observed that, if it did not, then judgment would be deemed to be entered 150 days after the court’s final decision, pursuant to Fed. R. Civ. P. 58(c)(2)(B). Brown, 730 F.3d at 699.

Judge Posner further noted that the Administrative Office of the United States Courts had drafted a form, called AO 450, which constitutes the preferred vehicle for complying with the “separate document” requirement of Rule 58. The appendix to the civil rules contains two other forms, Forms 70 and 71, that are similar to and even simpler than AO 450, and would also suffice. Id.

The judge described, however, the “inexplicable failure” by the clerk’s office in the Northern District of Illinois to use these forms. Id. at 699. That failure has been “richly productive of uncertainty,” notwithstanding that the whole purpose of Rule 58 is to produce clarity. Id. at 699-700. The judge cited to several Seventh Circuit cases, moreover, finding that docket entries similar to the one here satisfied the requirement of a separate document. Id. Other federal courts have not endorsed this view, although Judge Posner said the Third Circuit came close on one occasion. Id. at 700-01.

In Judge Posner’s opinion, the purpose of the docket entry here was to comply with the requirement under Fed. R. Civ. P. 77(d) to provide notice of the entry of an order or judgment. He opined that that notification should not “do service for a Rule 58 judgment” and that cases so allowing “should be overruled.” Brown, 730 F.3d at 701. As partial justification, he noted that, at least when the judgment denies all relief, as in this case, the separate document must be signed by the court clerk, and the entry here was not signed. Id.