                                                                        RECOMMENDED FOR FULL-TEXT PUBLICATION
16 Futernick v. Sumpter Township, et al.         No. 98-2003                 Pursuant to Sixth Circuit Rule 206
                                                                     ELECTRONIC CITATION: 2000 FED App. 0089P (6th Cir.)
                                                                                 File Name: 00a0089p.06
the August 17 order did not substantively alter the May 6
judgment in any way. It did not “close the case”; indeed, the
district court’s order indicated that the case had already been
closed. J.A. at 74 (D. Ct. Order 8/17/98) (“[A]lthough this       UNITED STATES COURT OF APPEALS
case is closed, plaintiff continues to inundate the court with                 FOR THE SIXTH CIRCUIT
motions.” (emphasis added)). Nor did the August 17 order                         _________________
eliminate the court’s retention of jurisdiction. Futernick may
still file motions in the case, although he must now obtain
                                                                                                    ;
leave of the district court to do so.
                                                                                                     
                                                                  SHELDON FUTERNICK,
                                                                                                     
   Futernick also argues that the order requiring him to obtain            Plaintiff-Appellant,
                                                                                                     
the court’s permission before filing any further motions

                                                                                                     
violates his constitutional right to due process and equal                                              No. 98-2003
protection. However, we have previously upheld a district                     v.
                                                                                                     
court’s issuance of a similar order. See Filipas v. Lemons,                                           >
835 F.2d 1145, 1146 (6th Cir. 1987) (“[I]t is clear that the      SUMPTER TOWNSHIP; HELEN            
plaintiffs are vexatious litigants who have filed many                                               
                                                                                                     
                                                                  TEALL, BARBARA DUDEK,
complaints concerning the same 1972 automobile accident.
                                                                                                     
                                                                  ARNESS COX, and BARNEY
The district court entered an order requiring leave of court
                                                                                                     
before the plaintiffs filed any further complaints. This          BAN, Sumpter Township
                                                                                                     
requirement is the proper method for handling the complaints      Trustees; MARVIN BANOTAI,
of prolific litigators, and the procedure does not violate the    Sumpter Township                   
first amendment.”). In light of the fact that Futernick was                                          
                                                                                                     
                                                                  Supervisor; GLENN BOWLES,
inundating the district court with repetitive motions, the
                                                                                                     
                                                                  Sumpter Township
district court’s order was not erroneous.
                                                                                                     
                                                                  Administrator; JOAN ODDY,
                                                                                                     
                    III. CONCLUSION                               Sumpter Township Clerk;
                                                                                                     
                                                                  JOHN MORGAN, Township
                                                                                                     
  For the foregoing reasons, we DISMISS Futernick’s appeal        Treasurer, jointly and
                                                                                                     
of the district court’s April 14 and May 6 judgments as
                                                                          Defendants-Appellees. 
                                                                  severally,
untimely and AFFIRM the district court’s denial of post-
                                                                                                     
judgment relief.
                                                                                                    1
                                                                        Appeal from the United States District Court
                                                                       for the Eastern District of Michigan at Detroit.
                                                                    No. 94-74296—Robert E. DeMascio, District Judge.
                                                                                Argued: February 4, 2000


                                                                                             1
2     Futernick v. Sumpter Township, et al.         No. 98-2003      No. 98-2003         Futernick v. Sumpter Township, et al. 15

             Decided and Filed: March 13, 2000                       a Rule 60(b) motion for an abuse of discretion. See United
                                                                     States v. Universal Management Servs., Inc., 191 F.3d 750,
    Before: NELSON, MOORE, and COLE, Circuit Judges.                 757 (6th Cir. 1999) (citing Hood v. Hood, 59 F.3d 40, 42 (6th
                                                                     Cir. 1995)). “In reviewing an order denying Rule 60(b) relief,
                     _________________                               we have no occasion to review the underlying judgment . . . .
                                                                     Instead, we merely inquire as to whether one of the specified
                          COUNSEL                                    circumstances exists in which [the appellant] is entitled to
                                                                     reopen the merits of his underlying claims.” Feathers v.
ARGUED: Thomas G. Plunkett, WILLIAMS, WILLIAMS,                      Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir. 1998).
RUBY & PLUNKETT, Birmingham, Michigan, for
Appellant. Christopher T. Koch, ABBOTT, NICHOLSON,                      We conclude that Futernick’s post-judgment motion was
QUILTER, ESSHAKI & YOUNGBLOOD, Detroit,                              properly denied because Futernick provided no reason that
Michigan, for Appellees. ON BRIEF: Daniel Noveck,                    would justify relief from the district court’s judgment. Only
NOVECK & SKLAR, Birmingham, Michigan, for Appellant.                 three months prior to the filing of Futernick’s motion, the
Christopher T. Koch, ABBOTT, NICHOLSON, QUILTER,                     district court considered the very same issues and ruled that
ESSHAKI & YOUNGBLOOD, Detroit, Michigan, Julie                       the Township, due in part to its financial difficulties, had not
McCann O’Connor, O’CONNOR, DeGRAZIA & TAMM,                          breached its obligation to proceed as quickly as possible with
Bloomfield Hills, Michigan, for Appellees.                           the bond sale. In his motion for post-judgment relief,
                                                                     Futernick did not provide any new information regarding the
                     _________________                               Township’s financial position. Without additional evidence
                                                                     tending to prove that the Township had the requisite revenue
                         OPINION                                     to support a thirteen-million-dollar bond issue, the district
                     _________________                               court properly refused to alter its judgment. Moreover,
   KAREN NELSON MOORE, Circuit Judge. This case                      Futernick’s claim that the Township’s monthly reports did not
involves a settlement agreement obligating defendant-                comply with the district court’s directive had been rejected
appellee Sumpter Township to construct sewer lines to                the previous month in the court’s order denying Futernick’s
plaintiff-appellant Sheldon Futernick’s mobile home park,            first post-judgment motion. J.A. at 73 (D. Ct. Order 7/15/98)
Holiday Woods. The agreement provided that the lines would           (“[T]he reports that defendants have prepared and submitted
be constructed with the proceeds of a bond sale to be                to the court fully comply with the Amended Judgment.”).
scheduled “as quickly as possible.” Although the agreement              Finally, Futernick takes issue with the district court’s
was entered on August 25, 1993, the Township has not yet             statement regarding the case being closed and its order that no
undertaken a bond sale or begun construction of the sewer            further motions may be filed without first seeking leave of the
lines to Holiday Woods.                                              court. Futernick alleges that the August 17 order “closing the
   Because of this delay, Futernick filed suit in federal district   case” was an improper substantive modification of the May 6
court against the Township and various of its officials,             amended judgment providing that the court would retain
alleging that the Township had breached the settlement               jurisdiction until the sewer had been constructed. However,
agreement and requesting specific performance. After a
bench trial, the district court concluded that, although there
had been substantial delays, the Township had not breached           R. CIV. P. 60(b).
14 Futernick v. Sumpter Township, et al.                No. 98-2003        No. 98-2003       Futernick v. Sumpter Township, et al.        3

  ($1,000.00) a day until such monthly report is filed. The                its obligation under the settlement agreement. Futernick now
  first of such reports is due June 1, 1998.                               appeals that decision, as well as the district court’s denial of
                                                                           his post-judgment motion to enforce the settlement
J.A. at 70-71 (D. Ct. Amended J. 5/6/98). Futernick claimed                agreement. Because Futernick’s appeal of the district court’s
in his motion that none of the three reports that the Township             judgment that the Township had not breached the settlement
had submitted pursuant to the court’s order “has outlined in               agreement is untimely, we DISMISS that portion of his
detail precisely what steps Sumpter Township has taken                     appeal. Concluding that Futernick has presented no reason
toward the issuance of bonds for the construction of Phase II              justifying relief from the district court’s judgment, we
of the sewer, as this Court ordered.” J.A. at 112 (Post-J. Mot.            AFFIRM the district court’s denial of post-judgment relief.
8/11/98).
                                                                                               I. BACKGROUND
  On August 17, 1998, the district court denied Futernick’s
post-judgment motion. The district court noted that “although                 Sheldon Futernick is the owner of Holiday West Mobile
this case is closed, plaintiff continues to inundate the court             Home Park and Holiday Woods Mobile Home Park, which
with motions,” and it “ordered that no further motions, or any             are located in Sumpter Township. In 1993, Futernick sued
other pleading shall be filed without first   seeking leave of             Sumpter Township and Township officials in federal district
court.” J.A. at 74 (D. Ct. Order 8/17/98).6 It is this order that          court alleging violations of 42 U.S.C. § 1983 and various
Futernick now challenges.                                                  state laws. Futernick sought an injunction prohibiting the
                                                                           Township from constructing a sewer system that did not
  Despite the title that Futernick provides, his post-judgment             include free hook-up status for his mobile home parks.
motion is not a motion to enforce a settlement agreement in
the ordinary sense. Futernick’s post-judgment motion instead                 The parties resolved the suit by way of a settlement
seeks the same relief that was denied in the April and May                 agreement, which was never reduced to writing but which was
judgments — namely, a determination that the Township is in                placed on the record on August 25, 1993. The agreement
breach of the settlement agreement and an order compelling                 provides:
the Township to proceed immediately with the bond sale.
Because Futernick’s motion really seeks modification of the                     Number one. The Township shall construct sewer
April 14 and May 6 judgments, we will treat Futernick’s post-                lines to Holiday West and Holiday Woods Mobile Home
judgment motion as one     brought pursuant to Federal Rule of               Parks. The line to Holiday West [(hereinafter referred to
Civil Procedure 60(b).7 We review a district court’s denial of               as “Phase I”)] will be constructed from the proceeds of
                                                                             the initial bond sale of $3.6 million. The line to Holiday
                                                                             Woods [(hereinafter referred to as “Phase II”)] will be
                                                                             constructed from the proceeds of the second scheduled
    6
     On August 14, 1998, Futernick filed a motion to dismiss without         bond sale. Sumpter Township shall obtain the second
prejudice his August 11 motion for enforcement of the settlement             bond sale as quickly as possible.
agreement. Having denied the August 11 motion, the district court denied
the August 14 motion as moot.                                                   Number two. Plaintiff shall pay a total of $625,000
    7                                                                        toward the construction costs of the sewer lines to
      Rule 60(b) provides in relevant part that “the court may relieve a     Holiday West and Holiday Woods. This payment will be
party or a party’s legal representative from a final judgment, order, or
proceeding” for any one of five enumerated reasons, as well as for “any      in lieu of any tap fees or connection charges for existing
other reason justifying relief from the operation of the judgment.” FED.
4     Futernick v. Sumpter Township, et al.        No. 98-2003    No. 98-2003        Futernick v. Sumpter Township, et al. 13

    units at either Holiday West or Holiday Woods. Payment        “Motion for Enforcement of Settlement Agreement.” In his
    of such amount shall be made as follows:                      motion, Futernick asked the district court to order the
                                                                  Township to begin immediately the process of issuing bonds
      (A) The sum of $225,000 shall be paid within seven          for the construction of Phase II.
    days of the date of commencement of flow of sewage
    from Holiday West into the Sumpter sewer system.                 The motion was based on two of the district court’s prior
                                                                  statements. First, in the court’s April 14 findings of fact and
      (B) The remaining $400,000 shall be paid within             conclusions of law, the district court concluded by stating:
    seven days of the date of commencement of flow of
    sewage from Holiday Woods into the Sumpter sewer                   We do not, however, mean to imply that the Township
    system.                                                         no longer has an obligation under the settlement
                                                                    agreement. They are obligated to provide sewer service
      Three. The Township agrees that no other mobile               to Holiday Woods and to have a bond sale. To this end,
    home park will receive more favorable fee on a per-site         the Township must immediately re-evaluate their
    basis with regard to the amount paid for the sewer              financial ability to issue bonds for Phase II. There is
    construction, and/or connection than Plaintiff.                 evidence to indicate that the Township does indeed now
                                                                    have sufficient funds for the sale. The design has been
      Number Four. The complaint against the Township               completed and the project has been bid. While the court
    and its officials will be dismissed with prejudice and          does not fault the Township for the delays from August
    without costs or attorneys fees to either party at the time     of 1994 to the present, the Township is running out of
    that construction to Holiday Woods is completed.                excuses for their non-performance.
    Prosecution of the action will be stayed with the Court’s
    permission pending that event.                                J.A. at 108-09 (D. Ct. Findings of Fact and Conclusions of
                                                                  Law 4/14/98). In his motion, Futernick argued: “It is now
      Number Five. The foregoing settlement is contingent         more than 90 days since the entry of those Findings of Fact
    upon agreement by the Michigan Department of Natural          and Conclusions of Law and the Township has not yet re-
    Resources to forego any enforcement action or effort to       evaluated their financial ability to issue bonds for Phase II.
    require compliance with the facility construction             The Township is not acting ‘immediately’ as this Court
    requirements of the Holiday Woods permit or the effluent      mandated.” J.A. at 112 (Post-J. Mot. 8/11/98). Second, in
    limits set therein, pending construction of the sewer         the district court’s amended judgment providing for the
    connection to Holiday Woods, and to suspend further           court’s retention of jurisdiction until completion of the
    proceedings toward a new permit for . . . Holiday West;       parties’ obligations under the settlement agreement, the
    pending construction of the sewer connection to Holiday       district court stated:
    West.
                                                                       It is further ordered that defendant Sumpter Township
      Number Six.          Notwithstanding the foregoing            shall submit monthly reports to the court outlining in
    paragraphs four and five, Plaintiff agrees to withdraw his      detail precisely what steps Sumpter Township has taken
    claim for injunctive relief with regard to the issuance and     towards the issuance of bonds for construction of Phase
    delivery of the initial bond issue covering inter alia          II of the sewer.
    construction to Holiday West, and a consent order will be          It is further ordered that failing to file a timely report,
    presented to the Court for entry accordingly.                   Sumpter Township will be fined One Thousand Dollars
12 Futernick v. Sumpter Township, et al.                  No. 98-2003        No. 98-2003           Futernick v. Sumpter Township, et al.              5

  jurisdiction on a court than a notice never filed.                         Joint Appendix (hereinafter “J.A.”) at 82-83 (D. Ct. Op.
  Attempts to resurrect notices of appeal must be treated                    Denying Mots. for Summ. J. 6/17/97) (ellipsis   in original).
  the same as belated notices of appeal. The time limits for                 After entry of the settlement agreement,1 the  district court
  filing an appeal require the losing party to choose                        dismissed the claims against the Township.2 A clean “non-
  between accepting the judgment and pursuing appellate                      litigation certificate” was then issued, making possible the
  review. The loser may not dither. Filing and dismissing                    closing of the initial bond sale.
  an appeal prevents appellate review, and we do not think
  that it should place the judgment in limbo — open to                         Phase I of the Sumpter sewer system providing service to
  review whenever the losing side changes its mind. The                      Holiday West was timely constructed with the proceeds of
  structure of the rules is set against such delay and                       that first bond sale, and Holiday West is not at issue in this
  uncertainty.                                                               case. Phase I of the sewer system involved the installation of
                                                                             a sewer trunk line along Rawsonville Road to Willis Road.
Barrow v. Falck, 977 F.2d 1100, 1103 (7th Cir. 1992)                         The Phase I system, however, does not extend far enough to
(citations omitted). While exceptions to this rule may lie in                serve Holiday Woods. Futernick believes that the Township
extraordinary circumstances, see e.g., Turker v. Ohio Dep’t of               should have extended the Willis Road Phase I sewer to
Rehabilitation & Corrections, 157 F.3d 453, 456 (6th Cir.                    Holiday Woods; the Township chose, however, to construct
1998) (explaining that reinstatement had been granted when                   the Phase II sewer along a different and more complete route
an attorney dismissed the appeal without the consent of the                  that would serve Holiday Woods.
client), Futernick’s misunderstanding of the law does not
present such a circumstance.                                                   In October of 1994, Futernick filed a diversity action in
                                                                             federal district court naming as defendants Sumpter Township
  Therefore, we dismiss Futernick’s appeal of the district                   and various Township officials.3 Futernick alleged that
court’s April 14 and May 6 judgments. Because Futernick’s
appeal is timely with regard to the August 17 and September
                                                                                 1
1 post-judgment orders, we now proceed to 5consider the                            The State of Michigan defendants refused to join in the settlement
merits of Futernick’s challenge to those orders.                             agreement, but in a letter to the district court Futernick waived the
                                                                             contingency stated in paragraph five.
B. Denial of Post-Judgment Relief                                                2
                                                                                   Futernick appealed the district court’s dismissal to a panel of this
  Futernick’s final claim is that “the trial court’s order of                court. See Futernick v. Sumpter Township, 78 F.3d 1051 (6th Cir.), cert.
August 17, 1998, which denied Sheldon Futernick’s post-                      denied, 519 U.S. 928 (1996). We affirmed the district court’s dismissal
                                                                             of Futernick’s claims against the Township, rejecting his argument that
judgment motion for enforcement of the settlement agreement                  the terms of the settlement agreement required the district court to retain
was clearly erroneous and an abuse of discretion which                       jurisdiction of the case until the Township fulfilled its obligations under
warrants reversal.” Appellant’s Br. at 33. Futernick’s                       the agreement. See id. at 1054-55. Additionally, we affirmed the district
motion, which was filed on August 11, 1998, is styled a                      court’s dismissal of Futernick’s claims against the State of Michigan
                                                                             defendants, who had not joined in the settlement agreement, on the basis
                                                                             that Futernick failed to state a claim upon which relief could be granted.
                                                                             See id. at 1055, 1060.
    5
      Although Futernick’s September 8 notice of appeal sought to                3
challenge both the August 17 and September 1 orders (as well as the July         The officials named in the complaint are Helen Teall, Barbara
15 order), in his brief Futernick argues only that the August 17 order was   Dudek, Arness Cox, and Barney Ban, Sumpter Township Trustees;
erroneous. We therefore direct our attention solely to that order.           Marvin Banotai, Sumpter Township Supervisor; Glenn Bowles, Sumpter
6     Futernick v. Sumpter Township, et al.             No. 98-2003        No. 98-2003        Futernick v. Sumpter Township, et al. 11

Sumpter Township had breached the settlement agreement                     was entered in a previous case. The district court therefore
and asked the court to enforce the terms of the agreement.                 did not simply retain jurisdiction to protect and enforce its
Both Futernick and the Township filed motions for summary                  judgment, Futernick’s counsel contended, but rather reopened
judgment, and on June 17, 1997, the district court, finding                the merits of the case. Although the district court’s retention
that genuine issues of material fact existed, entered an opinion           of jurisdiction over a previously-entered settlement agreement
denying both motions. The district court explained that the                technically differentiates this case from a Kokkonen-type case,
parties’ dispute focused on the first paragraph of the                     we conclude that there is no meaningful difference between
settlement agreement. The court reasoned:                                  the two for purposes of finality. In Kokkonen, the Supreme
                                                                           Court explained that a district court could retain jurisdiction
    Plaintiff argues that this paragraph creates an absolute               by making “the parties’ obligation to comply with the terms
    obligation on the part of the Township to build a sewer                of the settlement agreement . . . part of the order of
    line to Holiday Woods, whereas Defendant argues the                    dismissal.” Kokkonen, 511 U.S. at 381. This is precisely
    second bond sale is a condition precedent that must occur              what the district court did in its May 6 judgment; the court
    before the sewer line is to be built. The Court concludes              retained jurisdiction to ensure that the settlement agreement
    that the second bond sale is a condition precedent.                    would be executed, but it did not in any way qualify its ruling
       . . . The parties’ settlement agreement provides that               that the Township had not breached the settlement agreement.
    “[t]he line to Holiday Woods will be constructed from                  We do not interpret the May 6 judgment as reopening the
    the proceeds of the second scheduled bond sale.” A fair                merits of the breach of contract issue. Futernick’s appeal of
    and reasonable interpretation of this language is that the             the district court’s April 14 and May 6 judgments is therefore
    parties’ [sic] intended that the sewer line would be                   untimely.
    constructed after the occurrence of a future event — the
    second scheduled bond sale.                                               Futernick’s first appeal, which was pending in this court
                                                                           when the district court entered its May 6 amended judgment,
J.A. at 88-89 (citation omitted) (D. Ct. Op. Denying Mots. for             would have been timely with regard to the April 14 and
Summ. J. 6/17/97).                                                         May 6 judgments were it not voluntarily dismissed based
                                                                           upon an erroneous understanding of the law. See FED. R.
   Trial commenced on February 23, 1998, and the district                  APP. P. 4(a)(4)(B); supra n.4. We decline, however, to
court issued findings of fact and conclusions of law on April              reinstate Futernick’s first appeal. If appellants were permitted
14, 1998. The district court concluded that, although the                  to dismiss voluntarily a timely appeal and then reopen the
“Phase II project has been fraught with design delays and                  appeal at their pleasure, there is no limit to the amount of time
financing complications,” these delays did not constitute a                that could pass before a final judgment is reviewed.
breach of the Township’s obligation to construct Phase II “as              Appellants would essentially have the ability to make an end
quickly as possible.” J.A. at 107 (D. Ct. Findings of Fact and             run around Federal Rule of Appellate Procedure 4(a)(1).
Conclusions of Law 4/14/98). The court explained that the                  Such a result would completely undermine the purposes of the
Township still had an obligation under the agreement to                    statutory time limits for appeal and would compromise the
provide sewer service to Holiday Woods and to have a bond                  finality of judgments. As the Seventh Circuit has explained:
                                                                               A timely notice of appeal is essential to appellate
Township Administrator; Joan Oddy, Sumpter Township Clerk; and John          jurisdiction. A notice of appeal filed and dismissed
Morgan, Township Treasurer. For purposes of this opinion, we shall refer     voluntarily is gone, no more effective in conferring
to the officials and Sumpter Township collectively as “the Township.”
10 Futernick v. Sumpter Township, et al.            No. 98-2003       No. 98-2003        Futernick v. Sumpter Township, et al.        7

retention of jurisdiction over a settlement agreement, or its         sale, and it indicated that “[t]here is evidence to indicate that
incorporation of that agreement into its final order, satisfies       the Township does indeed now have sufficient funds for the
any jurisdictional concerns,” and treating the two judgments          sale.” J.A. at 108-09 (D. Ct. Findings of Fact and
below as “final judgments,” despite their express retention of        Conclusions of Law 4/14/98). The same day, the district
“jurisdiction for purposes of implementing and enforcing the          court issued a judgment dismissing Futernick’s complaint.
settlement agreements and final judgment orders”).                    J.A. at 69 (D. Ct. J. 4/14/98). On May 6, 1998, upon
Furthermore, it is well settled that the fact that a judgment is      Futernick’s motion, the district court amended its judgment
subject to reservations or conditions does not automatically          “to provide for the court’s retention of jurisdiction until
deprive a judgment of finality. See generally CHARLES ALAN            completion of the parties’ obligations under the settlement
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,                          agreement.” J.A. at 70 (D. Ct. Amended J. 5/6/98). Although
FEDERAL PRACTICE AND PROCEDURE § 3915.3, at 287 (2d ed.               Futernick had filed a timely appeal of the district court’s April
1992); cf. Tiboni v. Cleveland Trinidad Paving Co., 36 F.3d           14 judgment, Futernick voluntarily dismissed the appeal on
533, 534 (6th Cir. 1994) (assuming jurisdiction, without              the belief that the court’s retention of jurisdiction rendered the
discussing the issue of finality, over an appeal taken from a         judgment non-final.
district court order denying a motion to enforce a settlement
agreement and dismissing the action without prejudice subject           After issuance of the amended judgment, Futernick filed
to reopening upon motion by either party); Cusumano v.                several post-judgment motions for enforcement of the
Microsoft Corp., 162 F.3d 708, 711-12 (1st Cir. 1998)                 settlement agreement; the district court denied these motions
(concluding that a district court order denying a motion to           on July 15, 1998, August 17, 1998, and September 1, 1998.
compel ore tenus while retaining jurisdiction in order to             In its August 17 order denying Futernick’s second post-
review individual items in camera for materiality and “to             judgment motion, the district court ordered that “no further
order specific material produced upon a showing of                    motions, or any other pleading shall be filed without first
particularized need” was final, and stating that “[i]t is settled     seeking leave of the court.” J.A. at 74 (D. Ct. Order 8/17/98).
law that a court’s retention of jurisdiction in order to facilitate   Believing this to be the district court’s final judgment,
the consideration of possible future relief does not undermine        Futernick filed a second notice of appeal on September 8,
the finality of an otherwise appealable order”); Pioche Mines         1998. The September 8 notice of appeal sought to challenge
Consol., Inc. v. Fidelity-Philadelphia Trust Co., 191 F.2d            not only the district court’s orders denying post-judgment
399, 400 (9th Cir. 1951) (“Assuming that the other                    relief, but also the district court’s April 14 and May 6
requirements of finality are met, a ‘reservation to make              judgments.
further orders does not mean orders inconsistent with the
finality of the judgment.’” (quotation omitted)).                                            II. ANALYSIS

   At oral argument, Futernick’s counsel did not seriously            A. Jurisdiction
contend that the type of jurisdictional reservation
contemplated in Kokkonen would render a judgment non-                   Before proceeding to the merits, we must first address
final. Instead, he contended that the district court’s May 6          Sumpter Township’s argument that Futernick’s September 8
judgment contained an “extraordinary” retention of                    appeal should be dismissed as untimely. Federal Rule of
jurisdiction that serves to distinguish the case at bar from a        Appellate Procedure 4(a)(1)(A) provides that “[i]n a civil
Kokkonen-type reservation. He argued that, unlike in a                case,” “the notice of appeal . . . must be filed with the district
Kokkonen-type reservation, the parties’ settlement agreement          clerk within 30 days after the judgment or order appealed
                                                                      from is entered.” FED. R. APP. P. 4(a)(1)(A). Futernick’s
8    Futernick v. Sumpter Township, et al.                 No. 98-2003         No. 98-2003       Futernick v. Sumpter Township, et al.       9

notice of appeal was filed within thirty days of entry of the                  August 17 judgment that “closed the case,” so that his
district court’s August 17 and September 1 post-judgment                       September 8 appeal of the April and May judgments is timely.
orders; it is therefore timely with regard to those orders. The
question is therefore whether Futernick’s appeal of the                           We begin our analysis by noting that a district court has the
April 14 and May 6 judgments is timely. This, in turn,                         authority to dismiss pending claims while retaining
depends upon whether the May 6 judgment was final for                          jurisdiction over the future enforcement of a settlement
purposes of appeal.                                                            agreement. In Kokkonen v. Guardian Life Insurance Co. of
                                                                               America, 511 U.S. 375 (1994), the Supreme Court held that
   Pursuant to 28 U.S.C. § 1291, we “have jurisdiction of                      in order to have jurisdiction to enforce a settlement agreement
appeals from all final decisions of the district courts of the                 reached in a dismissed action, the district court must make the
United States.” 28 U.S.C. § 1291. The Township argues that                     parties’ obligation to comply with the terms of the settlement
the May 6 judgment constituted a final decision, so that an                    agreement “part of the order of dismissal — either by separate
appeal of the April 14 and May 6 judgments should have been                    provision (such as a provision ‘retaining jurisdiction’ over the
taken within    thirty days of the entry date of the May 6                     settlement agreement) or by incorporating the terms of the
judgment.4 Futernick, on the other hand, contends that the                     settlement agreement in the order.” Id. at 381; see also Waste
district court’s retention of jurisdiction in the May 6 judgment               Management of Ohio, Inc. v. City of Dayton, 132 F.3d 1142,
rendered it non-final so that an appeal from that judgment                     1144-45 (6th Cir. 1997) (citing Kokkonen for the proposition
would have been beyond our jurisdiction. Instead, Futernick                    that a district court’s retention of jurisdiction over a case
believes that the district court did not issue a final decision                resulting in the entry of a consent decree “clearly provides the
until August 17, 1998. In support of this position, Futernick                  district court with continued ancillary jurisdiction over the
cites the following language from the August 17 post-                          terms and conditions of the Settlement Agreement and
judgment order: “[A]lthough this case is closed, plaintiff                     Consent Decree”).
continues to inundate the court with motions.” J.A. at 74 (D.
Ct. Order 8/17/98). Futernick argues that it was the                             We have not previously had occasion to address the
                                                                               question whether a district court’s retention of jurisdiction to
                                                                               enforce the terms of a settlement agreement renders an
                                                                               otherwise final judgment non-final. Today we answer that
    4                                                                          question in the negative. In its April 14 judgment, the district
       Pursuant 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 the        court held that Sumpter Township had not breached its
judgment under Rule 59 of the Federal Rules of Civil Procedure, the time       obligations under the settlement agreement and dismissed
to file an appeal runs from the entry of the order disposing of that Rule 59   Futernick’s complaint. Although the May 6 judgment
motion. FED. R. APP. P. 4(a)(4)(A). Because Futernick timely filed a           reserved jurisdiction so that the district court could monitor
motion to amend the district court’s April 14 judgment, his thirty-day
appeal period began to run on May 12, which was the date on which the          the Township’s financial position and respond to any changes,
district court’s May 6 amended judgment was entered. Futernick’s appeal        the judgment resolved all issues on the merits and effectively
of the April 14 judgment was, therefore, premature because it was filed        ended the litigation. See Catlin v. United States, 324 U.S.
prior to entry of the May 6 judgment. However, Federal Rule of                 229, 233 (1945) (“A ‘final decision’ generally is one which
Appellate Procedure 4(a)(4)(B)(i) provides: “If a party files a notice of      ends the litigation on the merits and leaves nothing for the
appeal after the court announces or enters a judgment — but before it
disposes of any motion listed in Rule 4(a)(4)(A) [including a Rule 59          court to do but execute the judgment.”); cf. In re VMS Sec.
motion] — the notice becomes effective to appeal a judgment or order, in       Litig., 103 F.3d 1317, 1322 (7th Cir. 1996) (explaining that
whole or in part, when the order disposing of the last such remaining          the Kokkonen Court “recognized that a district court’s explicit
motion is entered.” FED. R. APP. P. 4(a)(4)(B)(i).
