UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

DESIGN BASICS, LLC, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Cause No. 1:16-CV-175-HAB 

 ) 

HELLER & SONS, INC., ) 

d/b/a Heller Homes, ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

 This matter comes before the Court on Plaintiff’s Request for Entry of Judgment (ECF No. 

90), filed on July 19, 2019 (the “Request”). The Request, which seeks the entry of judgment in 

favor of the Defendant pursuant to Federal Rule of Civil Procedure 58(d), follows this Court’s 

Opinion and Order granting Defendant’s Second Motion for Summary Judgment (ECF No. 88). 

That Opinion and Order also set a briefing schedule on Defendant’s entitlement to attorney fees 

under 17 U.S.C. § 505 (ECF No. 88 at 37–38). The intent of the Court was to enter a single 

judgment encompassing the liability determination in the Order and Opinion as well as the 

determination of the attorney fee issue. Not content to wait until the attorney fee issue is decided, 

Plaintiff filed the Request as well as a Notice of Appeal (ECF No. 91) and a Docketing Statement 

(ECF No. 92) on July 19, 2019. Having reviewed the Request, this Court concludes that judicial 

economy supports this case proceeding to appeal all at once, rather than through a piecemeal 

approach advocated by Plaintiff. Accordingly, the Request will be denied. 

 Rule 58 requires that, in most cases, judgment “must be set out in a separate document.” 

Fed. R. Civ. P. 58(a). The sole purpose of the Rule is to “clarify when the time for appeal . . . 

begins to run.” Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 (1978). Subpart (d), upon which 
the Request is made, permits a party to request “that judgment be set out in a separate document 

as required by Rule 58(a)” Fed. R. Civ. P. 58(d). Where the district court action contains a claim 

for attorney fees, subpart (e) provides: 

(e) Cost or Fee Awards. Ordinarily, the entry of judgment may not be delayed, nor 

the time for appeal extended, in order to tax costs or award fees. But if a timely 

motion for attorney’s fees is made under Rule 54(d)(2), the court may act before a 

notice of appeal has been filed and become effective to order that the motion have 

the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely 

motion under Rule 59. 

Fed. R. Civ. P. 58(e). 

 Because the Court assumes that Defendant will seek fees as permitted in the Opinion and 

Order, the Request is largely pointless. As it stands, the Court is delaying the finality of any 

judgment in this case because it has determined that it will be more efficient to decide fee questions 

before an appeal is taken so that the appeal relating to the fee award can be heard at the same time 

as the appeal relating to the merits of the case. See Fed. R. Civ. P. 58 advisory committee’s note 

to 1993 amendment. Once briefing on the fee issue is concluded, the Court will enter a final 

judgment resolving both the merits of the case and the fee issue. At that point, Plaintiff would have 

a final appealable judgment under Fed. R. App. 4(a)(1)(A) encompassing all issues in this case. 

 The time frame doesn’t change if the Request is granted. If a judgment on the merits of the 

case were entered today, Defendant would have fourteen (14) days within which to request an 

award of attorney fees. Fed. R. Civ. P. 54(d)(2)(B)(i). Defendant’s brief on fees is currently due 

on July 24, 2019, so it must be filed within that deadline. Upon the filing of Defendant’s brief, the 

Court could, and would, treat the request as a timely motion under Rule 59 to alter or amend the 

judgment. Fed. R. Civ. P. 58(e). Under Federal Rule of Appellate Procedure 4(a)(4)(A)(iii) and 
4(a)(4)(B)(i), Plaintiff’s Notice of Appeal would not become effective1

 until Defendant’s request 

for fees was ruled upon. At that point, Plaintiff would have a final appealable judgment under Fed. 

R. App. 4(a)(1)(A) encompassing all issues in this case. In either case, then, Plaintiff will not be 

permitted to pursue its appeal until the fee issue is resolved.

 Granting the Request would force this Court to enter a judgment, an order deeming 

Defendant’s request for fees a Rule 59 motion to alter or amend, a ruling on the fee request, and 

then an amended judgment. Denying the Request requires only a ruling on Defendant’s fee request 

and a judgment. Since the timing of the appeal is the same either way, this Court will adopt the 

course that is most efficient and will deny the Request. 

CONCLUSION 

 For the foregoing reasons, the Request (ECF No. 90) is DENIED.

SO ORDERED on July 23, 2019. 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT

 

1

 Although Plaintiff has filed a Notice of Appeal, that Notice is not yet effective because there has been no entry of 

judgment. Fed. R. App. 4(A)(2).