* The Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-21181

EARL LUDGOOD,

Plaintiff-Appellant,

versus

APEX MARINE CORPORATION SHIP MANAGEMENT,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

October 25, 2002

Before GARWOOD and CLEMENT, Circuit Judges and RESTANI,* Judge. 1

PER CURIAM:

Earl Ludgood app eals the district court's grant of summary

judgment in favor of the defendant-appellee APEX Marine Corp. on

appellant's employment racial discrimination claim pursuant to

Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. §

2000e and his related retaliation claim. We dismiss the appeal2

because the only notice of appeal is untimely.

Facts and Proceedings Below

Ludgood filed the instant action on August 27, 1999. He

asserted in his complaint that APEX refused to promote him because

of his race and terminated him in retaliation for filing the EEOC

complaint.

On March 22, 2001, APEX filed a motion for summary judgment.

The district court issued on a separate document its “Final Summary

Judgment” dated October 17, 2001, dismissing all of Ludgood's

claims, which was entered on the docket on that date. The district

court thereafter issued a ten page “Memorandum Opinion and Order”

dated October 23, 2001, which was entered on th e docket on that

date, setting forth its reasoning and the authorities on which it

relied. In the October 23, 2001 opinion and order the court

determined that Ludgood presented no summary judgment evidence that

he was qualified for the promo tion, that he applied for or even

sought the promotion, that APEX's employ ment decisions were

motivated by racial bias, or that APEX fired Ludgood in retaliation

for filing a complaint with the Texas Commission on Human Rights

and the EEOC. Accordingly, the court in its October 23 opinion and

order det ermined that both Ludgood's Title VII racial

discrimination claim and his retaliation claim were without merit.

On November 20, 200 1, appellant filed his notice of appeal

with the district court.1 Rules 4(a)(5) and 4(a)(6), Fed.R.App.P., provide as follows:

“(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal

if:

(i) a party so moves no later than 30 days after the

time prescribed by this Rule 4(a) expires; and

(ii) that party shows excusable neglect or good

cause.

(B) A motion filed before the expiration of the time prescribed in Rule

4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion if

filed after the expiration of the prescribed time, notice must be given to the other

parties in accordance with local rules.

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the

prescribed time or 10 days after the date when the order granting the motion is

entered, whichever is later.

(6) Reopening the Time to File an Appeal.

(A) the motion is filed within 180 days after the judgment or order is

entered or within 7 days after the moving party receives notice of the entry,

whichever is earlier;

(B) the court finds that the moving party was entitled to notice of the entry

of the judgment or order sought to be appealed but did not receive the notice from

the district court or any party within 21 days after entry; and

3 Discussion

We address whether the appeal was ti mely filed, thereby

providing this court with jurisdiction . Rule 4(a)(1)(A) of the

Federal Rules of Appellate Procedure provides:

“(a) Appeal in a Civil Case

(1) Time for Filing a Notice of Appeal

(A) In a civil case, except as pr ovided in Rules

4(a)(1) (B), 4(a)4, and 4(c)

, the notice of appeal

required by Rule 3 must be filed with the district

clerk within 30 days after the judgment or order

appealed from is entered.”

The appellant in the case s u b judice has not sought to take

advantage of provisions Rule 4(a)(5) or Rule 4(a)(6), Fed.R.App.P. 1(C) the court finds that no party would be prejudiced.”

4 Rule 26, Fed.R.App.P. clearly prescribes how courts are to compute

the time for filing a notice of appeal:

“(a) Computing Time. The following r u les apply in

computing any period of time specified in these rules or

in any local rule, court order, or applicable statute:

(1) Exclude the day of the act, event, or

default that begins the period.

(2) Exclude intermediate Saturdays, Sundays,

and legal holidays when the period is l ess

than 7 days, unles s stated in calendar days.

(3) Include the last day of the period unless

it is a Saturday, Sunday, legal holiday, or

--

if the act to be done is filing a paper in

court

-- a day on w hich the weather or other

conditions make the clerk's office

inaccessible.

. . .

(b) Extending Time. For good cause, the court may extend

the time prescribed by the s e rules or by its order to

perform any act, or may p e rmit an act to be done after

that time expires. But the court may not extend the time

to file:

(1) a notice of appeal (except as authorized

in Rule 4) or a petition for permission to

appeal; or

(2) a notice of appeal from or a petiti on to

enjoin, set aside, suspend, modify, enfo rce,

or otherwise review an order of an

administrative agency, board, commission, or

officer of the Unit ed States, unless

specifically authorized by law.

(c) Additional Time after Serv ice. When a party is

required or permitted to act within a prescribed period

after a paper is served on that party, 3 calendar days

are add ed to the prescribed period unless the paper is2 The rules as quoted in this opinion are those now in effect. Certain amendments, not

relevant to the disposition of this matter, have been made effective December 1, 2002. We also

noted that Fifth Circuit Rule 26.1 provides:

“Computing Time. Except for briefs and record excerpts, all other papers,

including petitions for rehearing, are not timely unless the clerk actually receives

them within the time fixed for filing. Briefs and record excerpts are deemed filed

on the day sent to the clerk by a third-party commercial carrier for delivery within

3 calendar days, or on the day of mailing if the most expeditious form of delivery

by mail is used. The additional 3 days after service by mail, or after delivery to a

commercial carrier for delivery within 3 calendar days referred to in FRAP 26(c),

applies only to matters served by a party and not to filings with the clerk of such

matters as petitions for rehearing under FRAP 40, petitions for rehearing en banc

under FRAP 35, and bills of costs under FRAP 39.”

5 delivered on the date of service stated in the proof of

service.” 2

In accordance with these provisions, in computing appellant's

time for filing a notice of appeal, the day the judgment was

entered, Wednes day, October 17, 2001, is excluded. Fed.R.App.P.

26(a)(1). Thus, beginning with October 18, 2001, Ludgood had a

period of thirty days in which to file his notice of appeal.

Fed.R.App.P. 4(a)(1)(A). Therefore, Friday, November 16, 2001 was

the last day of that thirty-day period.

Appellant's Exhibit A attached to its Memorandum in

Opposition to Motion to Dismiss is a certified mail receipt

reflecting a November 15, 2001 mailing to the United States

District Court of the Sou thern District of Texas which was

received on November 20, 2001 which appellant asserts, and

appellee does not dispute, contained appellant’s notice of appeal.

The Notice of Appeal is stamped a s filed on November 20, 2001.

Appellant merely contend s that, given an additional three6

days for filing by mail pro vided for in Fed.R.App.P. 26(c), the

last date on which the notice of appeal had to have been received

was November 2 0, 2001. Appellant does not explain how an

additional three days would ex tend the date from November 16 to

November 20. In any event, the additional three calender days

after service by mail as permitted by Fed.R.App.P. 26(c) is

unavailable because the time for filing notice of appeal commences

to run from the entry of judgment and not “after a paper is served

on that party” as provided in Rule 26(c). This court held the

three-day grace period for mailing to be inapplicable for

extending the thirty days allowed for notices for appeal in

Reynolds v. Hunt Oil Co. , 643 F.2d 1042 (5th Cir. 1981). It is

further well es tablished that a notice of appeal is effective on

the date it is actually file d, United States v. Clark , 193 F.3d

845 (5th Cir. 1999); In re Arbuckle

, 988 F.2d 29 (5th Cir. 1993),

and is filed as of the date it is actually received by the court,

not as of the date it is mailed. M atter of Robinson

, 640 F.2d

737, 738 (5th Cir. 1981), c iting Matter of Bad Bubba Racing

Prods., Inc ., 609 F.2d 815 (5th Cir. 1980).

Thus, despite the mailing of the notice of appeal on November

15, the relevant rules and clear precedent establish that the

clerk would have had to receive the notice no later than November

16, 2001 in order for the appeal to be timely.

Although appellant does not raise this issue, we nevertheless7

address the question of whether the October 17, 2001 “Final

Summary Judgment” met the criteria for a final judgment, th ereby

starting the clock for a timely appeal. A final judgment must be

(1) set forth on a separate doc ument and (2) entered on the

district court civil docket sheet. Fed.R.Civ.P. 58; see, Williams

v. Burlington Nort hern, Inc., 832 F.2d 100 ( 7th Cir. 1987). A

jud gment is said to be final if it conclusively determines the

rights of the parties to the litigation and leaves nothing for the

court to do but execute the order, see, e.g., Coopers & Lybrand v.

Livesay

, 98 S. Ct. 2454 (1978), or resolve collateral issues, see,

e.g., Budinich v. Becton Dickinson & Co.

, 108 S. Ct. 1717 (1988).

Rule 58 provides in pertinent part that “every judgment shall

be set forth on a separate document” and that “[a] judgment is

effective only when so set forth.” Fed. R. Civ. P. 58. According

to the Advisory Committee Notes, the judgment must be “set out on

a separate document--distinct from any opinion or

memorandum--whi ch provides the basis for the entry of judgment.”

Notes of Advisory Committee on R ules, 1963 Amendment, following

Fed. R. Civ. P. 58.

The sole purpose of Rule 58's separate-documen t requirement

was to clarify when the time for an appeal begins to run. Bankers

Trust Co. v. Mallis

, 98 S. Ct. 1117 (1978); C lough v. Rush

, 959

F.2d 182, 184-85 (10th Cir. 1992) (discussing history and purpose

of Rule 58). It was added in 1963 to prevent uncertainty “over3 We call the bar’s attention to the amendments to Fed.R.Civ.P. 58 effective December 1,

2002.

8 what actions

... would constitute an entry of judgment, and

occasio nal grief to litigants as a result of this uncertainty.”

United States v. Indrelunas

, 93 S. Ct. 1562 (19 73). In

Indrelunas

, the Court held that Rule 58 was a “‘mechanical change’

that must be mechanically applied in order to av oid new

uncertainties as to the date on which a judgmen t is entered.” 93

S.Ct. at 1565. “The entry of a final judgment under Rule 58

starts the clock for an appeal.” Reytblatt v. Dent on , 812 F.2d

1042, 1043 (7th Cir. 1987). 3

The October 17th ruling conclusively determined the rights of

the parties and left nothing further to be resolved. It was not

only entitled “Final Summary Judgment,” but it also concluded with

the statement “This is a F INAL JUDGMENT .” (caps and bold in the

original). The entirety of that document is as follows:

FINAL SUMMARY JUDGMENT

“In accordance with the Court's Memorandum and Order of this

date, the Court

ORDERS that Defendant APEX Marine Corp. is granted summary

judgment on all claims brought against it by Plainti ff Earl

Ludgood in the above-referenced action. The Court further

ORDERS that Plaintiff pay all costs of court.

This is a FINAL JUDGMENT

SIGNED at Houston, Texas, this 17th day of October, 2001.

/s Melinda Harmon, United States District Judge”

The Memorandum Opin ion and Order referenced was actually

dated and entered on October 23, 2001. Measured from October 23,9

2001, a notice of appeal filed November 20, 2001 would be timely.

It is clear to us, however, that October 17 is the operative date.

In D iamond v. McKenzie , 770 F.2d 225 (D.C. Cir.1985), the same

question of which document starts the clock arose, as the

memoran dum opinion and order was filed a month following the

initial order. The factors that the D iamond court relied upon in

holding the first document did not constitute a final judgment

were that it was entitled “order” rather than “final judgment,”

included a substantial amount of legal reasoning, and cited a

number of authorities. None of these factors are present here.

Indeed, the converse is true, as the October 17th docum ent was

clear ly labeled a “final judgment,” did not contain any legal

reasoning, and cited no legal authorities.

Thus, the only potential ambiguity in the case sub judice is

that the memorandum order and opinion was enter ed six days after

the final judgment. However, we agree with the 11th Circuit that

this does not alter the fact that the date of the final judgment

remains the operativ e date for determining the timeliness of an

appeal. Department of Revenue v. Brandt (In re Southeast Bank

Corp.)

, 97 F.3 d 476 (11th Cir.1996). Although the memorandum

order and opinion was filed after the final judgment, the 11th

Circuit held the appeal was untim ely because the clock began

running on the date the final judgment was entered, even t hough

the memorandum opinion to which it referred had yet t o be filed.10

The court noted, “Although the grounds for rehearing or appeal may

not be clearly known or identified until the memorandum opinion

has issued, where the judgment is entered prior to the memorandum

opinion, a party is free to timely file a motion for rehearing and

later file a supplemental memorandum based upon the memorandum

opinion.” B randt, 97 F.3d at 479, n.8. Here, it is unambiguously

clear that the October 17, 2001 “Final Summary Judgment” meets all

the criteria of a Rule 58 final judgment and that the October 23,

2001 “Memor andum Opinion and Order” does not. Moreover, the

notic e of appeal here purports to appeal “the Judgment of this

Court entered o n October 17, 2001" and makes no mention of or

re ference to the Memorandum Opinion and Order dated and entered

October 23, 2001.

Conclusion

Because we find the appellant's only notice of appeal was not

timely filed, we ho ld that this Court does not have jurisdiction

over the present appeal. The appeal is accordingly dismissed.

APPEAL DISMISSED.