Vincent M. DUDLEY, as Executor of the Estate of Robert J. Patton, and Rose Marie Patton, Plaintiffs-Appellees, v. PENN-AMERICA INSURANCE COMPANY, Defendant-Appellant, 313 F.3d 662

POOLER, Judge. Plaintiffs-Appellees Vincent M. Dudley, et al. (“Dudley”) moved to dismiss as untimely the appeal of defendant-appellant Penn-America Insurance Co. (“Penn-America”). As is sometimes the case, the procedural background of this case in the district court somewhat complicates the simple and straightforward answer to Dudley’s motion. Our path to the simple solution also is obscured by Dudley’s citation to our decision in Hodge v.

Hodge, 269 F.3d 155 (2d Cir.2001) (per curiam), which seems to support its position even though that result would be in direct contravention of the Federal Rules - of Appellate Procedure. In the end, however, simplicity prevails, the rules are plain, and we deny Dudley’s motion. BACKGROUND On October 5, 2000, Dudley filed a lawsuit in federal court based on diversity jurisdiction. Dudley alleged that Penn-America failed to pay it pursuant to a New York State court judgment entered against Penn-America’s insured, a bar called 24K Solid Gold, Inc.

In the underlying state court lawsuit, Dudley sued 24K Solid Gold, which defaulted, and the bar’s insurer, Penn-America, improperly disclaimed liability. As a result, Dudley alleged that Penn-America was “hable for payment of the judgment in the amount of $187,505.01, plus the appropriate statutory interest calculated from August 10, 2000.” In the complaint’s request for relief, plaintiff again asked the court to award $187,505.01 plus accrued interest and costs. Penn-America' answered the federal complaint and defended the lawsuit. On December 12, 2000, Dudley moved for

summary judgment. In the Notice of Motion for

Summary Judgment, plaintiff asked the court to find, among other things, that Penn-America was liable for payment of the underlying state court judgment and interest accrued on that judgment from August 10, 2000. In a written decision and order, the district court granted plaintiffs motion and held that “plaintiffs are entitled to

summary judgment” because Penn-America failed to comply with New York State insurance law in disclaiming liability. The district court entered judgment on August 24, 2001 (the “Original Judgment”). Penn-America did not file a notice of appeal at that time.

However, fewer than 10 business days later, on September 4, 2001, Dudley filed a motion for “Summary Judgment and Entry of Money Judgment” in which it asked the district court “[i]n furtherance of [its] prior decision,” to enter a money judgment against Penn-America in the amount of the underlying $187,505.01 judgment plus New York statutory prejudgment interest through August 30, 2001, of $16,921.68 plus additional statutory prejudgment interest of $50.40 “for those days elapsing between August 30, 2001 and the date of entry of judgment.” Dudley’s motion did not cite the procedural rule under which plaintiff sought relief.

Although Penn-America asked for additional time to respond to the motion, it failed to do so. In a written decision dated September 26, 2001, the district court granted Dudley’s motion in its entirety. It considered the motion as one filed pursuant to Fed. R.Civ.P. 60(

a) to correct a clerical mistake arising from oversight or omission. Importantly, the district court held that “[i]t was the court’s clear intention at the time it filed its Decision and Order granting plaintiffs

summary judgment, that all of the relief sought by plaintiffs, including that the court find (1) that the Penn-America disclaimer letter was invalid; (2) that Penn-America was liable for payment of the judgment as entered in the New York State Supreme Court; and (3) that Penn-America was liable for interest accrued on said judgment from August 10, 2000, be granted.” The district court directed the clerk of the court to amend the final judgment in the case to include the entry of a money judgment against Penn-America.

The clerk entered the order to amend the judgment on September 26, 2001 (the “Amended Judgment”) but never entered a separate amended judgment. Penn-America then filed a notice of appeal on October 12, 2001, from the district court’s August 24, 2001, decision and order, the Original Judgment, and the Amended Judgment. Penn-America subsequently posted a supersedeas bond in the district court. On October 19, 2001, Penn-America filed an amended notice of appeal to include the district court’s order awarding Dudley $150 in costs.

By a notice of motion filed on December 26, 2001, Dudley moved in this court to dismiss Penn-America’s appeal as untimely because defendant filed its notice of appeal in district court more than 30 days after entry 'of the district court’s Original Judgment. Penn-America opposed the motion, which we considered on submission. DISCUSSION Dudley contends that we lack jurisdiction to hear Penn-America’s appeal because Penn-America filed its notice of appeal more than 30 days after the entry of the Original Judgment and “[defendant’s time for filing a notice of appeal was not extended pursuant to Fed. R.App.

P. 4(a), nor otherwise.” Specifically, Dudley argues that because the Amended Judgment made no substantive changes to nor resolved any genuine ambiguities in the Original Judgment, it was a clerical correction with no tolling effect on the time for filing a notice of appeal. Dudley relies on our decision in Hodge v. Hodge, 269 F.3d 155 (2d Cir.2001). Penn-America responds that the district court erred in characterizing the Amended Judgment as having made a clerical correction under Rule 60(

a) because it contained substantive changes requiring factual determinations and affecting the parties’ rights in its award of a money judgment and prejudgment interest. Penn-America claims that the district court should have treated Dudley’s motion under Fed. R.Civ.P. 59(e), which concerns motions to alter or amend judgments. Penn-America notes, however, that regardless of whether Dudley’s motion was under Rule 59(

e) or Rule 60(a), Fed. R.App. P. 4(a)(4)(A)(iv) or (vi) extended Penn-America’s time to file a notice of appeal. We conclude that- the plain language of the Federal Rules of Appellate Procedure compels us to find that Penn-America’s notice of appeal was timely. In general, a party must file its notice of appeal “within 30 days after the judgment or order appealed from is entered.” Fed. R.App. P. 4(a)(1)(A). However, some motions have the effect of tolling this 30-day period. Under Fed. R.App.

P. 4(a)(4)(A), “[i]f a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.” The rule then lists six kinds of motions.

Relevant to this appeal is subsection (iv), which concerns a motion “to alter or amend the judgment under Rule 59,” and subsection (vi), which concerns a motion “for relief under Rule 60 if the motion is filed no later than 10 days ... after the judgment is entered.” Subsection (vi) calculates the 10-day period pursuant to Fed.R.Civ.P. 6(a), which excludes weekends and legal holidays for counting periods of fewer than 11 days. There is no dispute that Dudley filed its motion within 10 business days of the entry of the Original Judgment.

Dudley did not indicate under what Rule of Civil Procedure it moved, but the district court construed it as a Rule 60(

a) motion. Because Dudley made this Rule 60(

a) motion within 10 business days of the entry of the Original Judgment, subsection (vi) applied to toll the time for filing a notice of appeal until the district court disposed of Dudley’s motion, which occurred with the entry of the Amended Judgment on September 26, 2001. Thus, Penn-America had 30 days from September 26 in which to file a notice of appeal, and its October 12, 2001, notice of appeal was timely. We hold that the district court correctly construed Dudley’s motion as one made pursuant to Rule 60(a). The Amended Judgment did not affect substantive rights.

It merely corrected a judicial oversight, namely the district court’s failure to include the monetary award in the Original Judgment. Dudley’s federal complaint was based exclusively on an insurance contract and sought only damages in a liquidated sum — the amount of the New York state court judgment — plus prejudgment interest, to which plaintiff was entitled as a matter of right pursuant to N.Y. C.P.L.R. § 5001. Calculation of prejudgment interest was purely mechanical because New York law set the interest rate and the time period. N.Y. C.P.L.R. §§ 5001(b), 5004. Moreover, Dudley’s pleadings and

summary judgment motion papers consistently requested that monetary relief. Therefore, when the district court granted Dudley

summary judgment, it necessarily held that Dudley was entitled to damages in the amount of $187,505.01 plus prejudgment interest at the statutory rate. The district court made this previously held intention explicit in its order granting Dudley’s motion. Thus, this is not a ease like Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994), where we held that the district court could not use Rule 60(

a) to award prejudgment interest when there was no prior argument regarding a party’s right to the interest and the district court was unaware of any request for pre-decision interest. Here, we have a situation where “the absence of an award of pre-decision interest in a judgement ... fail[ed] to reflect the actual intention of the court,” so it properly is “correctable under Rule 60(a).” Id. (citing In re Frigitemp Corp., 781 F.2d 324, 327 (2d Cir.1986)).

We need look no further than Dudley’s consistent, detailed requests for prejudgment interest, the fact that he was entitled to it as a matter of law, and the district court’s own words that it intended to include the award in its Original Judgment as justification for our conclusion. See Frigitemp, 781 F.2d at 327-28 (noting that Rule 60(

a) is the proper vehicle for correcting a judgment in order to provide an award of prejudgment interest where, among other things, governing law would make the interest award automatic or the district court clearly intended to make the interest award in its prior order). We note that it makes no practical difference in this case whether the district court construed Dudley’s motion under Rule 60(a), as it of course did, or under Rule 59(

e) as seeking an alteration or amendment to a judgment, or under Rule 60(

b) as seeking relief from a mistaken judgment. Cf. Frigitemp, 781 F.2d at 328 (noting that while plaintiffs motion for an amended judgment to add prejudgment interest was improper under Rule 60(

a) based on the facts, it successfully could have moved under Rule 59(

e) or Rule 60(b)). Dudley’s motion met the time constraints of each provision. A timely motion under any of these provisions that also meets applicable time constraints of Rule 4 resets the time to file a notice of appeal to run from the entry of the order disposing of the motion. Fed. R.App. P. 4(a)(4)(A). The clear and plain language of the rule specifically lists motions “to alter or amend the judgment under Rule 59,” id. 4(a)(4)(A)(iv), or motions “for relief under Rule 60,” id. 4(a)(4)(A)(vi), as motions that reset the time within which to appeal. Moreover, it makes no distinction between Rule 60(

a) and Rule 60(

b) motions. Finally, we must reconcile the plain and clear language of Fed. R.App. P. 4(a)(4)(A)(vi) with our statement in Hodge that “a motion under Rule 60(

a) does not start anew the time for filing a notice of appeal.” Hodge, 269 F.3d at 158. Hodge was a case about the effect of a Rule 60(

a) motion on the timeliness of “postjudgment motions,” not notices of appeal. Moreover, the cases Hodge cited in support of its broad statement about the effect of a Rule 60(

a) motion on the time for filing a notice of appeal concerned situations that did not conflict with the plain language of Fed. R.App. P. 4(a)(4)(A)(vi). In Cody, Inc. v. Town of Woodbury, 179 F.3d 52, 55-56 (2d Cir.1999) (per curiam), we simply held that a district court could not issue a second, identical judgment for the purpose of restarting a party’s time for filing an appeal. Importantly, Cody involved a Rule 60(

b) motion filed more than 10 days after entry of judgment, and Cody explicitly acknowledged that the appellant could have taken advantage of the tolling mechanism in Fed. R.App. P. 4 if it had filed its motion within 10 days. Id. at 56. In Farkas v. Rumore, 101 F.3d 20, 22 (2d Cir.1996) (per curiam), we held that a second judgment that was identical in its dismissal of two counts but merely sought to restore the case number to the docket for an unrelated reason did not restart the time for filing a notice of appeal. No Rule 60 motion was involved.

The general proposition that subsequent judgments do not start anew the time for filing a notice of appeal does not override the specific language of Fed. R.App. P. 4(a)(4)(A)(vi), which only concerns Rule 60 motions filed within 10 days of an original judgment. Thus, the language in Hodge that Dudley quoted to support its position lacks force on the facts before us, and that case does not purport to overrule the Federal Rules of Appellate Procedure. CONCLUSION For the forgoing reasons, we deny Dudley’s motion to dismiss as untimely the appeal of Penn-America Insurance Co. .

The concurrence argues that the district court was making substantive decisions in its calculation of prejudgment interest in the Amended Judgment that were not apparent in the Original Judgment. We disagree. As noted, the Original Judgment granted the relief requested in the complaint, which included calculation of prejudgment interest from August 10, 2000, and the Amended Judgment merely confirmed and executed the monetary award. It does appear that the district court in its Amended Judgment made a mistake by calculating interest from August 30 instead of August 10 as it had stated in the Amended Judgment.

Because plaintiff never sought to correct this mistake, it is irrelevant, and even the concurrence says its point is "not to question the merits of the district court's decisions regarding prejudgment interest.”