* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CYNTHIA FAYE WOODS,

Plaintiff-CounterDefendant-Appellant,

v. WAL-MART, a corporation,

Defendant-CounterClaimant-Appellee, and S.A. NEUMEYER, SEAN DEBOW, named as: Shawn DeBow, individually and as members of the Aurora Police Department; AURORA, CITY OF, a municipal corporation in the State of Colorado, joint and several liability,

Defendants-Appellees. No. 96-1381 (D.C. No. 92-S-965) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.-2-

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Cynthia Faye Woods appeals from an order of the district court denying her motion to remand several state claims f ollowing the final disposition of this removed action. For reasons explained belo w, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm. While working as a cashier for a Wal-Mart store in Aurora, Colorado, Ms. Woods was filmed by an internal security camerapermitting a customer to pass through her check-out stand paying only for tw o minor items, although the customer’s shopping cart contained a television andeleven articles of clothing. Ms. Woods was arrested for theft and fired from herjob. She was ultimately acquitted on the criminal charges, however, and sub sequently filed suit in state court asserting numerous contract, tort, and federa l civil rights claims against Wal-Mart, two Aurora police officers involved in he r arrest, and the City of Aurora. Shortly thereafter, the defendants jointlysecured removal of the action to federal district court pursuant to 28 U.S.C. § 1441 , evidently without objection from Ms. Woods.1 A post-judgment request for remand submitted beyondthe period specified

for a motion to alter or amend judgment under Fed. R. Civ. P. 59 is properly treated as a motion to vacate judgment and remand u nder Fed. R. Civ. P. 60(b), and, as such, its denial is an appealable dispositi on. See, e.g. , Gould v. Mutual Life Ins. Co. , 790 F.2d 769, 772 (9th Cir. 1986); Bruton v. Shan k , 349 F.2d 630, 631 (8th Cir. 1965); see also Parks v. Montgomery Ward & Co. , 198 F.2d 772, 773-74 (10th Cir. 1952). -3- Eventually, the district court granted summary judg ment in favor of the defendants on all federal claims, and dismissed the state claims for lack of supplemental jurisdiction. This court affirmed. S ee Woods v. Neumeyer , No. 95-1097, 1996 WL 67187 (unpub. 10th Cir.), cert . denied , 116 S. Ct. 2553 (1996). Four months later, Ms. Woods filed a motio n asking the district court to remand the case back to state court, pursuant to 28 U.S.C. § 1447, for proceedings on her state causes of action. The district court summarily denied the motion in a minute order entered on the docket July 3, 1996. M s. Woods filed a notice of appeal from that order 1 on August 5, 1996, apparently outside the thirty-d ay appeal period specified in Fed. R. App. P. 4(a)(1).

I

. Appellate Jurisdiction
A. Timeliness and Rule 58 “Because the timely filing of a notice of appeal is mandatory and jurisdictional, we must determine, as a threshold m atter, whether the notice of appeal was timely before evaluating the merits of t he appeal.” Farthing v. City of2 There is some controversy whether Rule 58 even appl ies to orders denying

post-judgment relief. Compare Fiore v. Washington County Community Mental Health Ctr. , 960 F.2d 229, 232-34 (1st Cir. 1992) (citing textand policy to apply rule), withChambers v. American Trans Air, Inc. , 990 F.2d 317, 318 (7th Cir. 1993) (relying on analysis of post-judgment contextto hold rule inapposite). But we have applied it to the denial of a new trial mot ion, see Allen ex rel. Allen v. (continued...) -4- Shawnee , 39 F.3d 1131, 1133 n.1 (10th Cir. 1994) (quotatio n omitted). Under Rule 4(a), “[t]he date of entry is the beginning po int for when the time period begins to run.” Jenkins v. Burtzloff , 69 F.3d 460, 461 (10th Cir. 1995). “‘Entry’ . . . occurs only when [pursuant to Rule 58] the es sentials of a judgment or order are set forth in a written document separate from the court’s opinion and memorandum and when [pursuant to Rule 79] the subst ance of this separate document is reflected in an appropriate notation onthe docket sheet . . . .” Herrera v. First Northern Sav. & Loan Ass’n , 805 F.2d 896, 899 (10th Cir. 1986);

see Fed. R. App. P. 4(a)(7). While noncompliance withthese procedures may be deemed waived when appellate jurisdiction is otherw ise secure, where, as here, an appeal would be untimely if measured from the date of the order under review, Rule 58 may, rather, be strictly enforced to hold t hat the appeal time has yet to run, thereby preserving appellate rights. See, e.g

. , Clough v. Rush , 959 F.2d 182, 184-85 (10th Cir. 1992); see also Shalala v. Schaefer , 509 U.S. 292, 302-03 (1993). Thus, noncompliance with the rule here cou ld potentially save Ms. Woods’ otherwise untimely appeal. 22 (...continued)

Horinek , 827 F.2d 672, 673 (10th Cir. 1987), and, “[b]ecau se the underlying principles are closely analogous,” there is good re ason “to adopt a uniform approach for all orders denying post-judgment motio ns.” Fiore , 960 F.2d at 232. -5- Rule 58 is not enforced in strictly literal fashionif there is no question about finality; in such a case, the order effecting the challenged disposition may itself constitute the requisite “separate document. ” Clough , 959 F.2d at 185; United States v. Clearfield State Bank , 497 F.2d 356, 358 (10th Cir. 1974) (rule does not “mean that two documents are required in a ll cases”). “Generally, orders containing neither a discussion of the court’s reas oning nor any dispositive legal analysis can act as final judgments if they are int ended as the court’s final directive and are properly entered on the docket.” Clough , 959 F.2d at 185. Thus, in Allen , this court deemed Rule 58 satisfied by entry of a n order that, like the order in this case, simply denied post-judgmentrelief. Allen , 827 F.2d at 673; see also Laidley v. McClain , 914 F.2d 1386, 1390 (10th Cir. 1990) (holding bri ef order adopting magistrate judge’s report and granti ng summary judgment satisfied rule). Accordingly, we hold that the time for appe al commenced on July 3, 1996, and, consequently, that the notice of appeal was un timely.
B. Excuse for Untimeliness Ms. Woods seeks to excuse her late appeal on two ba ses. First, she claims the clerk failed to provide her with notice of the entry of judgment, as required by-6-

Fed. R. Civ. P. 77(d), and contends this omission t olled the time for appeal until August 5, 1996, when she first learned of the entry . Rule 77(d) states that “[l]ack of notice of the entry by the clerk does not affectthe time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rul es of Appellate Procedure.” Where, as here, a tardy appellant has not sought re lief from the district court under Rule 4(a), any lack of notice as to entry wil l not excuse her untimely appeal. See, e.g. , Senjuro v. Murray , 943 F.2d 36, 37 (10th Cir. 1991); Lathrop v. Oklahoma City Hous. Auth. , 438 F.2d 914, 915 (10th Cir. 1971). Second, Ms. Woods submits an affidavit from counsel recounting specific inquiries about the entry of judgment directed to the district court which, until a computer search was finally conducted by the clerk on August 5, 1997, elicited negative responses. These undisputed facts go beyo nd mere nonfeasance under Rule 77(d), and implicate the “unique circumstances ” doctrine under which a jurisdictionally defective appeal may be allowed in the interests of justice if affirmative actions or statements by the district c ourt have “induced detrimental reliance by an appellant resulting in the filing of an untimely notice of appeal.” Senjuro , 943 F.2d at 37-38; see, e.g. , Stauber v. Kieser , 810 F.2d 1, 1-2 (10th Cir. 1982). As we cannot say counsel’s reliance on the specific misinformation provided by the court clerk was unreasonable, we ac cept jurisdiction of this-7-

appeal and proceed to the merits. See generallyHome & Family, Inc. v. England Resources Corp. (In re Home & Family, Inc.) , 85 F.3d 478, 481 (10th Cir. 1996) (noting “[r]easonable reliance [is] the mainstay of the ‘unique circumstances’ doctrine”).

II. Merits of the Appeal As noted above, the district court’s summary order denying the motion to remand does not set forth any legal rationale. We may, nonetheless, affirm the order on any ground for which the record permits a conclusion of law. See Scheerer v. Rose State College , 950 F.2d 661, 663 (10th Cir. 1991). Neither of the principal arguments advanced by defendants on appeal provides such a rationale, but together they direct our attention t o the critical inquiry. Defendants contend the final judgment on the merits deprived the district court of jurisdiction to consider any subsequent re mand of the now-dismissed state claims. On the contrary, so long as the rema nd motion was premised on the district court’s lack of jurisdiction over the remo ved action, the assertedly void judgment would present no obstacle to the relief re quested. “If the federal court never could have exercised original jurisdiction ov er the case, remand is required even after the entry of final judgment.” Mignogna v. Sair Aviation, Inc. , 937 F.2d 37, 40 (2d Cir. 1991) (following American Fire & Cas. Co. v. Finn , 341 U.S. 6 (1951)); see In re Carter , 618 F.2d 1093, 1098 (5th Cir. 1980) (“Even after entry-8-

of final judgment, the constitutional balance of po licies that underlies the Article III grant of judicial power impels the vacation of that judgment and remand to the state court having jurisdiction when it is determin ed that the federal court was without power to act because of a lack of subject m atter jurisdiction over a removed case.”). Defendants also contend that, by failing to challenge the dismissal of her state claims on her prior appeal, Ms. Woods lost her right thereafter to seek a remand. Once again, if her re mand motion was based on the district court’s lack of jurisdiction, the existenc e of a prior appeal omitting that issue would not bar Rule 60(b)(4) relief. See Wilmer v. Board of County
Commr’s , 69 F.3d 406, 408-10 (10th Cir. 1995) (holding pos t-appeal jurisdictional challenge properly brought under Rul e 60(b)(4), and affording relief because challenge had not been litigated on appeal--which would have raised concerns about law of the case). Thus, our inquirymust focus on the legal basis for the remand sought, specifically on any jurisdic tional objections to the judgment dismissing the state claims. In this vein Ms. Woods argues that, with the advers e disposition of her federal causes of action, upheld on her first appea l, any removal/supplemental jurisdiction over her state claims derived therefro m was nullified ab initio, necessitating the district court to vacate its dism issal of the latter claims and remand them to state court. This is simply wrong. When a federal claim-9-

anchoring removed or supplemental state claims is r ejected on the merits, the exercise of federal jurisdiction over the latter is not retroactively undermined; after the federal claim is resolved, the district c ourt is then empowered to decide whether to proceed on the merits of the state claim s, dismiss them (as the district court did here), or remand them to the state court from which they were removed. See, e.g. , Carnegie-Mellon Univ. v. Cohill , 484 U.S. 343, 348-53, 357 (1988); Albertson’s, Inc. v. Carrigan , 982 F.2d 1478, 1481 (10th Cir. 1993); Robles v. City of Fort Wayne , 113 F.3d 732, 738 (7th Cir. 1997); Edmondson & Ga llagher v. Alban Towers Tenants Ass’n , 48 F.3d 1260, 1265-67 (D.C. Cir. 1995). We do not assess the propriety of the particular choice m ade among these discretionary alternatives here; any (nonjurisdictional) objectio n in this regard was indeed lost by omission from, or disposition on, appeal from th e judgment of dismissal. For present purposes, we need only recognize that the d istrict court had jurisdiction to make such a choice. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED. Entered for the Court
Michael R. Murphy Circuit Judge