OLA IRENE RIVERS, ET AL., PLAINTIFFS, W. A. TAYLOR, PLAINTIFF-APPELLEE,
v.
WASHINGTON COUNTY BOARD OF EDUCATION, ET AL., DEFENDANTS-APPELLANTS
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The court has jurisdiction to hear the appeal because a subsequent amended judgment effectively terminated the litigation, and the notice of appeal, filed before the amended judgment, is treated as timely.
Appellants filed a notice of appeal from a non-final judgment. The district court later entered an amended judgment that finally disposed of all claim…
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PER CURIAM:
Initially, we must address whether we have jurisdiction to hear the present appeal. Defendants/appellants filed a notice of appeal from an August 31, 1984 judgment awarding backpay to plaintiff/appellee Taylor. At that time there was no final, appealable order as required by 28 U.S.C. § 1291, since the court had not entered a final judgment on the claims of plaintiff Nelson and had not certified the case pursuant to Fed.R.Civ.P. 54(b). See Jetco Electronics Industries, Inc. v. Gardiner, 473 F. 2d 1228, 1231 (5th Cir.1973). After filing the notice of appeal, the defendants filed a “motion to amend judgment,” which was granted on October 12, 1984 by the district court, to reflect the final disposition of the case as to all parties and claims in the litigation.
Rule 54(b) and section 1291 do not bar our jurisdiction in the present case, since the courts will consider “the separate appeal of a nonfinal judgment where a subsequent judgment of the district court effectively terminates the litigation.” Martin v. Campbell, 692 F. 2d 112,114 (11th Cir.1982); see Jetco, 473 F. 2d at 1231.
Nevertheless, another problem remains. Appellants did not file a new notice of appeal after their motion to amend judgment was granted. Fed.R.App.P. 4(a)(4) provides that a notice of appeal filed before the disposition of a Rule 59 motion to alter or amend judgment shall have no effect. Appellant’s motion to amend judgment did not state that it was filed pursuant to Fed. R.Civ.P. 59(e). Indeed, it could not have been, since that rule provides that a motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
Therefore, we construe this motion to amend as brought pursuant to Rule 60(a), to correct an omission or oversight in the August 31st judgment, since the motion and resulting amended judgment did not amend any of the terms of the judgment previously rendered or affect the status of any of the parties to the case, but merely clarified the final status of the par ties and claims in the litigation. Since we do not construe this motion to amend as a Rule 59 motion, the notice of appeal prematurely filed is treated as being filed after the entry of the amended judgment. See Fed.R.App.P. 4(a)(2). We do have jurisdiction to consider the merits of this case.
The district court has broad, equitable discretion to grant any equitable relief it deems appropriate to make persons whole for injuries suffered on account of unlawful employment discrimination. Franks v. Bowman Transport Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 1264, 47 L.Ed.2d 444 (1976). The district court did not abuse its discretion in ordering that appellee Taylor be instated to the next principal vacancy in Washington County. The court was under no compulsion to order the removal of the current principal of Fruit-dale High in order to place Taylor in that position. We note that the district court order does not enjoin the appellants from placing Taylor in the Fruitdale High principal position, if that be the next principal vacancy in the Washington County school system.
AFFIRMED.
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Norman v. The Hous. Auth. OF the City OF Montgomery, 836 F.2d 1292 (11th Cir. 1988)…judgment was rendered but before the attorney’s fees issue was decided was premature, but found that a subsequent order deciding the attorney’s fees issue cured the premature notice. Id. at 705, citing Rivers v. Washington County Board of Education, 770 F. 2d 1010, 1011 (11th Cir.1985); Martin v. Campbell, 692 F. 2d 112, 114 (11th Cir.1982). This court has noted that the holding in Bank South “may be incorrect,” Robinson v. Tanner, 798 F. 2d 1378, 1384 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1979,…
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Robinson v. Tanner, 798 F.2d 1378 (11th Cir. 1986)…is rule has played an active part in the jurisprudence of this court, the former Fifth Circuit, and various other circuits. See Bank South Leasing, Inc. v. Williams, 778 F. 2d 704, 705 (11th Cir.1985); Rivers v. Washington County Board of Education, 770 F. 2d 1010, 1011 (11th Cir. 1985); Kleiner v. First National Bank of Atlanta, 751 F. 2d 1193, 1199 n. 13 (11th Cir.1985); Martin v. Campbell, 692 F. 2d 112, 114 (11th Cir.1982); Mesa Petroleum Co. v. Coniglio, 629 F. 2d 1022, 1029 n. 7 (5th Cir.1980); Tower v…
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Bank S. Leasing, Inc. v. Williams, 778 F.2d 704 (11th Cir. 1985)…ntered a final judgment in which it made the attorneys’ fee award. Under the circuit’s precedents the district court’s July 5th judgment cured the jurisdictional defect and made dismissal improper. See Rivers v. Washington County Board of Education, 770 F. 2d 1010, 1011 (11th Cir.1985); Martin v. Campbell, 692 F. 2d 112, 114 (11th Cir.1982). We therefore grant the petitions for rehearing, vacate our prior dismissal of these appeals and turn to the merits of these cases. In No. 84-3350 Bank South appeals th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (U.S. 1976)
- Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973)
- Shayne Degraw Martin v. R. E. Campbell, M.D., 692 F.2d 112 (11th Cir. 1982)