16 Futernick v. Sumpter Township, et al. No. 98-2003

the August 17 order did not substantively alter the May 6judgment in any way. It did not “close the case”; indeed, thedistrict court’s order indicated that the case had already beenclosed. J.A. at 74 (D. Ct. Order 8/17/98) (“[A]lthough thiscase is closed, plaintiff continues to inundate the court withmotions.” (emphasis added)). Nor did the August 17 ordereliminate the court’s retention of jurisdiction. Futernick maystill file motions in the case, although he must now obtainleave of the district court to do so.

Futernick also argues that the order requiring him to obtain

the court’s permission before filing any further motionsviolates his constitutional right to due process and equalprotection. However, we have previously upheld a districtcourt’s issuance of a similar order. See Filipas v. Lemons,835 F.2d 1145, 1146 (6th Cir. 1987) (“[I]t is clear that theplaintiffs are vexatious litigants who have filed manycomplaints concerning the same 1972 automobile accident.The district court entered an order requiring leave of courtbefore the plaintiffs filed any further complaints. Thisrequirement is the proper method for handling the complaintsof prolific litigators, and the procedure does not violate thefirst amendment.”). In light of the fact that Futernick wasinundating the district court with repetitive motions, thedistrict court’s order was not erroneous.

III. CONCLUSION

For the foregoing reasons, we DISMISS Futernick’s appeal

of the district court’s April 14 and May 6 judgments asuntimely and AFFIRM the district court’s denial of postjudgment relief.

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

SHELDON FUTERNICK,

Plaintiff-Appellant,

v.

SUMPTER TOWNSHIP; HELENTEALL, BARBARA DUDEK,

ARNESS COX, and BARNEY

BAN, Sumpter TownshipTrustees; MARVIN BANOTAI,Sumpter TownshipSupervisor; GLENN BOWLES,

Sumpter TownshipAdministrator; JOAN ODDY,

Sumpter Township Clerk;JOHN MORGAN, TownshipTreasurer, jointly andseverally,

Defendants-Appellees.

Appeal from the United St

for the Eastern District of M

No. 94-74296—Robert E. DeM

Argued: February 
2 Futernick v. Sumpter Township, et al. No. 98-2003

Decided and Filed: March 13, 2000

Before: NELSON, MOORE, and COLE, Circuit Judges.

_________________

COUNSEL

ARGUED: Thomas G. Plunkett, WILLIAMS, WILLIAMS,RUBY & PLUNKETT, Birmingham, Michigan, forAppellant. Christopher T. Koch, ABBOTT, NICHOLSON,QUILTER, ESSHAKI & YOUNGBLOOD, Detroit,Michigan, for Appellees. ON BRIEF: Daniel Noveck,NOVECK & SKLAR, Birmingham, Michigan, for Appellant.Christopher T. Koch, ABBOTT, NICHOLSON, QUILTER,ESSHAKI & YOUNGBLOOD, Detroit, Michigan, JulieMcCann O’Connor, O’CONNOR, DeGRAZIA & TAMM,Bloomfield Hills, Michigan, for Appellees. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. This case

involves a settlement agreement obligating defendantappellee Sumpter Township to construct sewer lines toplaintiff-appellant Sheldon Futernick’s mobile home park,Holiday Woods. The agreement provided that the lines wouldbe constructed with the proceeds of a bond sale to bescheduled “as quickly as possible.” Although the agreementwas entered on August 25, 1993, the Township has not yetundertaken a bond sale or begun construction of the sewerlines to Holiday Woods.

Because of this delay, Futernick filed suit in federal district

court against the Township and various of its officials,alleging that the Township had breached the settlementagreement and requesting specific performance. After abench trial, the district court concluded that, although therehad been substantial delays, the Township had not breached

No. 98-2003 Futernick v. SumR.

CIV. P. 60(b).

a Rule 60(b) motion for an abuse States v. Universal Management S757 (6th Cir. 1999) (citing Hood v. Cir. 1995)). “In reviewing an order we have no occasion to review the Instead, we merely inquire as to wcircumstances exists in which [threopen the merits of his underlyChevron U.S.A., Inc., 141 F.3d 26

We conclude that Futernick’s p

properly denied because Futernick would justify relief from the distrithree months prior to the filing odistrict court considered the very the Township, due in part to its finbreached its obligation to proceed the bond sale. In his motion Futernick did not provide any new Township’s financial position. Wtending to prove that the Township to support a thirteen-million-dollcourt properly refused to alter iFuternick’s claim that the Townshicomply with the district court’s dthe previous month in the court’s first post-judgment motion. J.A. a(“[T]he reports that defendants havto the court fully comply with the 

Finally, Futernick takes issue 

statement regarding the case being further motions may be filed withocourt. Futernick alleges that the Aucase” was an improper substantive amended judgment providing thajurisdiction until the sewer had be
14 Futernick v. Sumpter Township, et al. No. 98-2003

6On August 14, 1998, Futernick filed a motion to dismiss without

prejudice his August 11 motion for enforcement of the settlementagreement. Having denied the August 11 motion, the district court deniedthe August 14 motion as moot.

7Rule 60(b) provides in relevant part that “the court may relieve a

party or a party’s legal representative from a final judgment, order, orproceeding” for any one of five enumerated reasons, as well as for “anyother reason justifying relief from the operation of the judgment.” FED.

($1,000.00) a day until such monthly report is filed. Thefirst of such reports is due June 1, 1998.

J.A. at 70-71 (D. Ct. Amended J. 5/6/98). Futernick claimedin his motion that none of the three reports that the Townshiphad submitted pursuant to the court’s order “has outlined indetail precisely what steps Sumpter Township has takentoward the issuance of bonds for the construction of Phase IIof the sewer, as this Court ordered.” J.A. at 112 (Post-J. Mot.8/11/98).

On August 17, 1998, the district court denied Futernick’s

post-judgment motion. The district court noted that “althoughthis case is closed, plaintiff continues to inundate the courtwith motions,” and it “ordered that no further motions, or anyother pleading shall be filed without first seeking leave ofcourt.” J.A. at 74 (D. Ct. Order 8/17/98).6 It is this order that

Futernick now challenges.

Despite the title that Futernick provides, his post-judgment

motion is not a motion to enforce a settlement agreement inthe ordinary sense. Futernick’s post-judgment motion insteadseeks the same relief that was denied in the April and Mayjudgments — namely, a determination that the Township is inbreach of the settlement agreement and an order compellingthe Township to proceed immediately with the bond sale.Because Futernick’s motion really seeks modification of theApril 14 and May 6 judgments, we will treat Futernick’s postjudgment motion as one brought pursuant to Federal Rule ofCivil Procedure 60(b).7 We review a district court’s denial of

No. 98-2003 Futernick v. Sumits obligation under the settlement appeals that decision, as well as thhis post-judgment motion to agreement. Because Futernick’s apjudgment that the Township had nagreement is untimely, we DISMappeal. Concluding that Futernicjustifying relief from the distriAFFIRM the district court’s denia

I. BACKGRO

Sheldon Futernick is the owner 

Home Park and Holiday Woods Mare located in Sumpter TownshipSumpter Township and Township court alleging violations of 42 Ustate laws. Futernick sought an Township from constructing a seinclude free hook-up status for his 

The parties resolved the suit 

agreement, which was never reduceplaced on the record on August 2provides:

Number one. The Townshi

lines to Holiday West and HolidaParks. The line to Holiday West as “Phase I”)] will be constructthe initial bond sale of $3.6 millWoods [(hereinafter referred to constructed from the proceeds obond sale. Sumpter Township bond sale as quickly as possible

Number two. Plaintiff shall 

toward the construction costs Holiday West and Holiday Woodin lieu of any tap fees or connec
4 Futernick v. Sumpter Township, et al. No. 98-2003

units at either Holiday West or Holiday Woods. Paymentof such amount shall be made as follows:

(A) The sum of $225,000 shall be paid within seven

days of the date of commencement of flow of sewagefrom Holiday West into the Sumpter sewer system.

(B) The remaining $400,000 shall be paid within

seven days of the date of commencement of flow ofsewage from Holiday Woods into the Sumpter sewersystem.

Three. The Township agrees that no other mobile

home park will receive more favorable fee on a per-sitebasis with regard to the amount paid for the sewerconstruction, and/or connection than Plaintiff.

Number Four. The complaint against the Township

and its officials will be dismissed with prejudice andwithout costs or attorneys fees to either party at the timethat construction to Holiday Woods is completed.Prosecution of the action will be stayed with the Court’spermission pending that event.

Number Five. The foregoing settlement is contingent

upon agreement by the Michigan Department of NaturalResources to forego any enforcement action or effort torequire compliance with the facility constructionrequirements of the Holiday Woods permit or the effluentlimits set therein, pending construction of the sewerconnection to Holiday Woods, and to suspend furtherproceedings toward a new permit for . . . Holiday West;pending construction of the sewer connection to HolidayWest.

Number Six. Notwithstanding the foregoing

paragraphs four and five, Plaintiff agrees to withdraw hisclaim for injunctive relief with regard to the issuance anddelivery of the initial bond issue covering inter aliaconstruction to Holiday West, and a consent order will bepresented to the Court for entry accordingly.

No. 98-2003 Futernick v. Sum“Motion for Enforcement of Settlemotion, Futernick asked the diTownship to begin immediately thfor the construction of Phase II.

The motion was based on two o

statements. First, in the court’s Apconclusions of law, the district cou

We do not, however, mean to 

no longer has an obligation agreement. They are obligated tto Holiday Woods and to have a the Township must immediafinancial ability to issue bonds evidence to indicate that the Towhave sufficient funds for the salcompleted and the project has bedoes not fault the Township for of 1994 to the present, the Towexcuses for their non-performan

J.A. at 108-09 (D. Ct. Findings oLaw 4/14/98). In his motion, Futmore than 90 days since the entry and Conclusions of Law and the evaluated their financial ability to The Township is not acting ‘immandated.” J.A. at 112 (Post-J. Mthe district court’s amended judcourt’s retention of jurisdiction parties’ obligations under the sdistrict court stated:

It is further ordered that defen

shall submit monthly reports to detail precisely what steps Sumptowards the issuance of bonds foII of the sewer.

It is further ordered that failin

Sumpter Township will be fined 
12 Futernick v. Sumpter Township, et al. No. 98-2003

5Although Futernick’s September 8 notice of appeal sought to

challenge both the August 17 and September 1 orders (as well as the July15 order), in his brief Futernick argues only that the August 17 order waserroneous. We therefore direct our attention solely to that order.

jurisdiction on a court than a notice never filed.Attempts to resurrect notices of appeal must be treatedthe same as belated notices of appeal. The time limits forfiling an appeal require the losing party to choosebetween accepting the judgment and pursuing appellatereview. The loser may not dither. Filing and dismissingan appeal prevents appellate review, and we do not thinkthat it should place the judgment in limbo — open toreview whenever the losing side changes its mind. Thestructure of the rules is set against such delay anduncertainty.

Barrow v. Falck, 977 F.2d 1100, 1103 (7th Cir. 1992)

(citations omitted). While exceptions to this rule may lie inextraordinary circumstances, see e.g., Turker v. Ohio Dep’t of

Rehabilitation & Corrections, 157 F.3d 453, 456 (6th Cir.1998) (explaining that reinstatement had been granted whenan attorney dismissed the appeal without the consent of theclient), Futernick’s misunderstanding of the law does notpresent such a circumstance.

Therefore, we dismiss Futernick’s appeal of the district

court’s April 14 and May 6 judgments. Because Futernick’sappeal is timely with regard to the August 17 and September1 post-judgment orders, we now proceed to consider themerits of Futernick’s challenge to those orders.5

B. Denial of Post-Judgment Relief

Futernick’s final claim is that “the trial court’s order of

August 17, 1998, which denied Sheldon Futernick’s postjudgment motion for enforcement of the settlement agreementwas clearly erroneous and an abuse of discretion whichwarrants reversal.” Appellant’s Br. at 33. Futernick’smotion, which was filed on August 11, 1998, is styled a

No. 98-2003 Futernick v. Sum

1The State of Michigan defendants r

agreement, but in a letter to the districontingency stated in paragraph five.

2Futernick appealed the district cou

court. See Futernick v. Sumpter Townshidenied, 519 U.S. 928 (1996). We affirmof Futernick’s claims against the Townsthe terms of the settlement agreement reqjurisdiction of the case until the Townshithe agreement. See id. at 1054-55. Additcourt’s dismissal of Futernick’s claims defendants, who had not joined in the setthat Futernick failed to state a claim upon See id. at 1055, 1060.

3The officials named in the compl

Dudek, Arness Cox, and Barney Ban, Marvin Banotai, Sumpter Township SupeJoint Appendix (hereinafter “J.ADenying Mots. for Summ. J. 6/17After entry of the settlement agre

dismissed the claims against the T

litigation certificate” was then issclosing of the initial bond sale.

Phase I of the Sumpter sewer sy

Holiday West was timely construthat first bond sale, and Holiday Wcase. Phase I of the sewer system ia sewer trunk line along RawsonvThe Phase I system, however, doeserve Holiday Woods. Futernick bshould have extended the Willis Holiday Woods; the Township chthe Phase II sewer along a differenthat would serve Holiday Woods.

In October of 1994, Futernick 

federal district court naming as defeand various Township officials.3 
6 Futernick v. Sumpter Township, et al. No. 98-2003

Township Administrator; Joan Oddy, Sumpter Township Clerk; and JohnMorgan, Township Treasurer. For purposes of this opinion, we shall referto the officials and Sumpter Township collectively as “the Township.”Sumpter Township had breached the settlement agreementand asked the court to enforce the terms of the agreement.Both Futernick and the Township filed motions for summaryjudgment, and on June 17, 1997, the district court, findingthat genuine issues of material fact existed, entered an opiniondenying both motions. The district court explained that theparties’ dispute focused on the first paragraph of thesettlement agreement. The court reasoned:

Plaintiff argues that this paragraph creates an absoluteobligation on the part of the Township to build a sewerline to Holiday Woods, whereas Defendant argues thesecond bond sale is a condition precedent that must occurbefore the sewer line is to be built. The Court concludesthat the second bond sale is a condition precedent.

. . . The parties’ settlement agreement provides that

“[t]he line to Holiday Woods will be constructed fromthe proceeds of the second scheduled bond sale.” A fairand reasonable interpretation of this language is that theparties’ [sic] intended that the sewer line would beconstructed after the occurrence of a future event — thesecond scheduled bond sale.

J.A. at 88-89 (citation omitted) (D. Ct. Op. Denying Mots. forSumm. J. 6/17/97).

Trial commenced on February 23, 1998, and the district

court issued findings of fact and conclusions of law on April14, 1998. The district court concluded that, although the“Phase II project has been fraught with design delays andfinancing complications,” these delays did not constitute abreach of the Township’s obligation to construct Phase II “asquickly as possible.” J.A. at 107 (D. Ct. Findings of Fact andConclusions of Law 4/14/98). The court explained that theTownship still had an obligation under the agreement toprovide sewer service to Holiday Woods and to have a bond

No. 98-2003 Futernick v. Sumwas entered in a previous case. Tdid not simply retain jurisdiction judgment, Futernick’s counsel contthe merits of the case. Although thof jurisdiction over a previously-enttechnically differentiates this case f

we conclude that there is no meanthe two for purposes of finality. I

Court explained that a district couby making “the parties’ obligation of the settlement agreement . dismissal.” Kokkonen, 511 U.S. what the district court did in its Mretained jurisdiction to ensure that would be executed, but it did not in that the Township had not breached We do not interpret the May 6 jumerits of the breach of contract issthe district court’s April 14 and Mauntimely.

Futernick’s first appeal, which 

when the district court entered its Mwould have been timely with reMay 6 judgments were it not voupon an erroneous understanding 

APP. P. 4(a)(4)(B); supra n.4. 

reinstate Futernick’s first appeal. If to dismiss voluntarily a timely apappeal at their pleasure, there is no that could pass before a final Appellants would essentially have run around Federal Rule of AppSuch a result would completely undstatutory time limits for appeal anfinality of judgments. As the Seve

A timely notice of appeal i

jurisdiction. A notice of appevoluntarily is gone, no more 
10 Futernick v. Sumpter Township, et al. No. 98-2003

retention of jurisdiction over a settlement agreement, or itsincorporation of that agreement into its final order, satisfiesany jurisdictional concerns,” and treating the two judgmentsbelow as “final judgments,” despite their express retention of“jurisdiction for purposes of implementing and enforcing thesettlement agreements and final judgment orders”).Furthermore, it is well settled that the fact that a judgment issubject to reservations or conditions does not automaticallydeprive a judgment of finality. See generally CHARLES 

ALAN

WRIGHT, ARTHUR R.

MILLER 

&

EDWARD H.

COOPER, FEDERAL 

PRACTICE AND 

PROCEDURE § 3915.3, at 287 (2d ed.

1992); cf. Tiboni v. Cleveland Trinidad Paving Co., 36 F.3d

533, 534 (6th Cir. 1994) (assuming jurisdiction, withoutdiscussing the issue of finality, over an appeal taken from adistrict court order denying a motion to enforce a settlementagreement and dismissing the action without prejudice subjectto reopening upon motion by either party); Cusumano v.Microsoft Corp., 162 F.3d 708, 711-12 (1st Cir. 1998)(concluding that a district court order denying a motion tocompel ore tenus while retaining jurisdiction in order to

review individual items in camera for materiality and “toorder specific material produced upon a showing ofparticularized need” was final, and stating that “[i]t is settledlaw that a court’s retention of jurisdiction in order to facilitatethe consideration of possible future relief does not underminethe finality of an otherwise appealable order”); Pioche MinesConsol., Inc. v. Fidelity-Philadelphia Trust Co., 191 F.2d399, 400 (9th Cir. 1951) (“Assuming that the otherrequirements of finality are met, a ‘reservation to makefurther orders does not mean orders inconsistent with thefinality of the judgment.’” (quotation omitted)).

At oral argument, Futernick’s counsel did not seriously

contend that the type of jurisdictional reservationcontemplated in Kokkonen would render a judgment nonfinal. Instead, he contended that the district court’s May 6judgment contained an “extraordinary” retention ofjurisdiction that serves to distinguish the case at bar from aKokkonen-type reservation. He argued that, unlike in aKokkonen-type reservation, the parties’ settlement agreement

No. 98-2003 Futernick v. Sumsale, and it indicated that “[t]here ithe Township does indeed now hasale.” J.A. at 108-09 (D. CtConclusions of Law 4/14/98). Tcourt issued a judgment dismissiJ.A. at 69 (D. Ct. J. 4/14/98). Futernick’s motion, the district co“to provide for the court’s retencompletion of the parties’ obligatagreement.” J.A. at 70 (D. Ct. AmeFuternick had filed a timely appeal 14 judgment, Futernick voluntarilthe belief that the court’s retention ojudgment non-final.

After issuance of the amended 

several post-judgment motions settlement agreement; the district con July 15, 1998, August 17, 1998In its August 17 order denying judgment motion, the district courmotions, or any other pleading sseeking leave of the court.” J.A. at Believing this to be the district Futernick filed a second notice o1998. The September 8 notice of anot only the district court’s orderelief, but also the district courjudgments.

II. ANALY

A. Jurisdiction

Before proceeding to the meri

Sumpter Township’s argument thaappeal should be dismissed as unAppellate Procedure 4(a)(1)(A) pcase,” “the notice of appeal . . . muclerk within 30 days after the judfrom is entered.” FED. R.

APP. P
8 Futernick v. Sumpter Township, et al. No. 98-2003

4Pursuant to Federal Rule of Appellate Procedure 4(a)(4)(A), if a

party timely files in the district court a motion to alter or amend thejudgment under Rule 59 of the Federal Rules of Civil Procedure, the timeto file an appeal runs from the entry of the order disposing of that Rule 59motion. FED. R.

APP. P. 4(a)(4)(A). Because Futernick timely filed a

motion to amend the district court’s April 14 judgment, his thirty-dayappeal period began to run on May 12, which was the date on which thedistrict court’s May 6 amended judgment was entered. Futernick’s appealof the April 14 judgment was, therefore, premature because it was filedprior to entry of the May 6 judgment. However, Federal Rule ofAppellate Procedure 4(a)(4)(B)(i) provides: “If a party files a notice ofappeal after the court announces or enters a judgment — but before itdisposes of any motion listed in Rule 4(a)(4)(A) [including a Rule 59motion] — the notice becomes effective to appeal a judgment or order, inwhole or in part, when the order disposing of the last such remainingmotion is entered.” FED. R.

APP. P. 4(a)(4)(B)(i).

notice of appeal was filed within thirty days of entry of thedistrict court’s August 17 and September 1 post-judgmentorders; it is therefore timely with regard to those orders. Thequestion is therefore whether Futernick’s appeal of theApril 14 and May 6 judgments is timely. This, in turn,depends upon whether the May 6 judgment was final forpurposes of appeal.

Pursuant to 28 U.S.C. § 1291, we “have jurisdiction of

appeals from all final decisions of the district courts of theUnited States.” 28 U.S.C. § 1291. The Township argues thatthe May 6 judgment constituted a final decision, so that anappeal of the April 14 and May 6 judgments should have beentaken within thirty days of the entry date of the May 6judgment.4 Futernick, on the other hand, contends that the

district court’s retention of jurisdiction in the May 6 judgmentrendered it non-final so that an appeal from that judgmentwould have been beyond our jurisdiction. Instead, Futernickbelieves that the district court did not issue a final decisionuntil August 17, 1998. In support of this position, Futernickcites the following language from the August 17 postjudgment order: “[A]lthough this case is closed, plaintiffcontinues to inundate the court with motions.” J.A. at 74 (D.Ct. Order 8/17/98). Futernick argues that it was the

No. 98-2003 Futernick v. SumAugust 17 judgment that “closeSeptember 8 appeal of the April and 

We begin our analysis by noting 

authority to dismiss pending jurisdiction over the future enfoagreement. In Kokkonen v. GuardAmerica, 511 U.S. 375 (1994), the in order to have jurisdiction to enforeached in a dismissed action, the dparties’ obligation to comply with agreement “part of the order of dismprovision (such as a provision ‘retasettlement agreement) or by incosettlement agreement in the order.” Management of Ohio, Inc. v. City 1144-45 (6th Cir. 1997) (citing Kothat a district court’s retention oresulting in the entry of a consent ddistrict court with continued anciterms and conditions of the SeConsent Decree”).

We have not previously had 

question whether a district court’s enforce the terms of a settlemeotherwise final judgment non-finaquestion in the negative. In its Aprcourt held that Sumpter Townshobligations under the settlement Futernick’s complaint. Althougreserved jurisdiction so that the dithe Township’s financial position athe judgment resolved all issues on ended the litigation. See Catlin v229, 233 (1945) (“A ‘final decisioends the litigation on the merits acourt to do but execute the judgmLitig., 103 F.3d 1317, 1322 (7th Cthe Kokkonen Court “recognized th