                                                              FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit

                                                     November 16, 2007
                                      PUBLISH        Elisabeth A. Shumaker
                                                         Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



MEDICAL SUPPLY CHAIN, INC.,

             Plaintiff - Appellant,
      v.                                        No. 06-3331
NEOFORMA, INC.; ROBERT J.
ZOLLARS; VOLUNTEER HOSPITAL
ASSOCIATION; CURT
NONOMAQUE; UNIVERSITY
HEALTHSYSTEM CONSORTIUM;
ROBERT J. BAKER; US BANCORP
NA; US BANK NA; JERRY A.
GRUNDHOFER; ANDREW CECERE;
PIPER JAFFRAY COMPANIES;
ANDREW S. DUFF; SHUGART
THOMSON & KILROY, WATKINS
BOULWARE, P.C.; NOVATION,
LLC,

               Defendants - Appellees,
-------------------------

SAMUEL K. LIPARI,

           Interested Party-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                   (D.C. NO. 05-CV-2299-CM)
Submitted on the briefs: *

Ira Dennis Hawver, Ozawkie, Kansas, for Plaintiff - Appellant.

Mark A. Olthoff, Shughart Thomson & Kilroy, P.C., Kansas City, Missouri,
Andrew M. DeMarea, Shughart Thomson & Kilroy, P.C., Overland Park, Kansas,
for Defendants - Appellees, U.S. Bancorp, N.A., U.S. Bank National Association,
Jerry A. Grundhofer, Andrew Cecere, Piper Jaffray Companies, and Andrew S.
Duff.

Stephen N. Roberts, Janice Vaughn Mock, Nossaman, Guthner, Knox & Elliott,
LLP, San Francisco, California, and John K. Power, Husch & Eppenberger,
Kansas City, Missouri, for Defendants - Appellees, Neoforma, Inc. and Robert J.
Zollars.

Kathleen Bone Spangler, Vinson & Elkins, L.L.P, Houston, Texas, and John K.
Power, Husch & Eppenberger, Kansas City, Missouri, for Defendants - Appellees
Novation, LLC, Curt Nonomaque, Volunteer Hospital Association, University
Healthsystem Consortium and Robert J. Baker.

William E. Quirk, Kathleen A. Hardee, Shughart Thomson & Kilroy, P.C., Kansas
City, Missouri, for Defendant - Appellee, Shughart Thomson & Kilroy, P.C., and
Watkins Boulware, P.C.



Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


HARTZ, Circuit Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

                                        -2-
      Plaintiff Medical Supply Chain, Inc. (MSC) appeals from a district-court

order striking its motion under Fed. R. Civ. P. 59(e) to alter or amend the

judgment against it. Because the notice of appeal was untimely and timeliness is

jurisdictional, we dismiss the appeal.

      We begin by summarizing the rules that govern the timeliness of this

appeal. Federal Rule of Appellate Procedure 4(a)(1)(A) states the general rule

that the notice of appeal “must be filed with the district clerk within 30 days after

the judgment or order appealed from is entered.” Cf. Fed. R. App. P. 4(a)(1)(B)

(setting 60-day limit “[w]hen the United States or its officer or agency is a

party”). Federal Rule of Civil Procedure 58 sets forth how a judgment or order is

to be entered. Under Rule 58(a)(1) ordinarily a “judgment [or] amended

judgment must be set forth on a separate document.” (Federal Rule of Civil

Procedure 54(a) defines judgment as “any order from which an appeal lies.”) But

there are exceptions to the separate-document requirement; a separate document is

not required for orders disposing of motions under Rules 50(b), 52(b), 54, 59, and

60. See Fed. R. Civ. P. 58(a)(1)(A), (B), (C), (D), (E). Entry is straightforward

when a separate document is not required; in that circumstance, the order is

“entered” when it is “entered in the civil docket under Rule 79(a).” Id.

Rule 58(b)(1). But if a separate document is required, the judgment is entered

only “when it is entered in the civil docket under Rule 79(a) and when the earlier

of these events occurs: (A) when it is set forth on a separate document, or (B)

                                          -3-
when 150 days have run from entry in the civil docket under Rule 79(a).” Id.

Rule 58(b)(2). We now apply these provisions to the case before us. 1

      MSC filed a 115-page complaint against the defendants alleging 16 causes

of action ranging from violation of the Sherman Act to prima facie tort. On

March 7, 2006, the district court entered an order that, among other things,

dismissed the case and imposed sanctions on MSC. The order resolved all issues

between the parties. It was therefore a final judgment, see id. Rule 54(b), and

appealable, see Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1261 (10th Cir.

2001). But the district court did not prepare a separate document setting forth the

judgment; so, for purposes of the rules, judgment was not entered until 150 days

later, on August 4, 2006. See Fed. R. Civ. P. 58(b)(2).

      On March 14, 2006, Samuel K. Lipari, MSC’s chief executive officer, filed

an entry of appearance and the motion at issue on this appeal, a motion for

reconsideration of the March 7, 2006, order. Mr. Lipari is not an attorney. His

entry of appearance informed the court that he had dissolved MSC, had fired its

attorney, and was now going to represent himself. Three days later, MSC’s

attorney filed a motion for leave to withdraw. On March 27 Mr. Lipari filed a

motion for leave to rewrite and amend MSC’s complaint if the court were to grant

his motion to reconsider. On March 30 he filed a motion to strike a number of

1
      Effective December 1, 2007, Rule 58 will be restyled, so that Rule 58(a)(1)
becomes Rule 58(a) and its subparagraphs (A), (B), (C), (D), and (E) become
paragraphs (1), (2), (3), (4), and (5) of Rule 58(a).

                                        -4-
filings by various defendants on the ground that they had not been properly

served upon him as a pro se litigant. Finally, on July 24, 2006, Mr. Lipari filed in

district court a motion to have the case transferred back to the federal district

court for the Western District of Missouri, where it had originated.

      On August 7, 2006, the district court issued a Memorandum and Order (the

M&O) striking the motions filed by Mr. Lipari and denying the motion to

withdraw filed by MSC’s attorney. The district court ruled that despite MSC’s

dissolution, it continued to exist for purposes of the litigation and that Mr. Lipari,

as a nonattorney, could not represent it and file motions on its behalf. On

September 8, 2006, MSC’s attorney filed a notice of appeal on behalf of

Mr. Lipari and MSC.

      Although the notice of appeal could be read to encompass several rulings

by the district court, MSC’s appellate briefs make clear that the only ruling it

challenges is the rejection of the motion to reconsider. Therefore, we need

address only the timeliness of the notice of appeal with respect to that order. As

MSC appears to concede, the motion to reconsider was a motion under either

Federal Rule of Civil Procedure 59, Rule 60, or both. See Jennings v. Rivers, 394

F.3d 850, 855 & n.4 (10th Cir. 2005). An order denying such a motion need not

be set forth on a separate document in order to be considered “entered” under the

rules. See Fed. R. Civ. P. 58(a)(1)(D), (E). Thus, entry of the M&O in the

district court’s docket on August 7 commenced the 30-day period for filing the

                                          -5-
notice of appeal. Because the notice of appeal was not filed until

September 8—32 days later—it was untimely.

      We are not persuaded that any circumstance present in this case delayed the

commencement of the 30-day period beyond August 7. One possibility is that an

appeal of a motion to reconsider a final judgment, as in this case, is not ripe until

the final judgment has been entered. As it turns out, however, the final judgment

was entered (in accordance with the 150-day provision of Federal Rule of Civil

Procedure 58(b)(2)) on August 4, 2006, three days before the M&O was entered

in the court’s docket. As a result, we have no reason to decide whether entry of

the final judgment was required for ripeness; even if it were required, that

requirement was satisfied here.

      Another possibility, the one pressed by MSC, is that despite the exception

to the separate-document requirement for orders disposing of motions to

reconsider, that exception does not apply in the special circumstances of this case.

Of course, if a separate document were required by Rule 58(b)(2), then the

absence of such a document would mean that the appealed order was not entered

until 150 days after August 7, see Fed. R. Civ. P. 58(b)(2), and the notice of

appeal would have been far from late. MSC presents two arguments why the

exception does not apply. We reject both.

      First, MSC contends that the exception to the separate-document rule does

not apply because the court did not decide the merits of the motion to reconsider,

                                          -6-
but rather “struck” it. The exception, however, depends only on whether the

order “dispos[es] of” a Rule 59 (or Rule 60) motion, id. Rule 58(a)(1); and

striking a motion certainly disposes of it.

      Second, MSC contends that the exception for orders denying motions under

Rule 59 or 60 does not apply in this case, because the denial order was part of an

M&O that also disposed of additional motions. We disagree. To be sure, to the

extent that the M&O contains a judgment disposing of a nonexcepted motion, a

separate document should be filed disposing of that motion. But each order in the

M&O should be considered separately for compliance with the separate-document

requirement. Rule 58(a) does not say that an order disposing of an excepted

motion must be set forth in a separate document if it is disposed of in the same

legal paper as an order disposing of a nonexcepted motion. It is unnecessary for

all the orders in the M&O to be “entered” at the same time. The purpose of the

separate-document rule is to clarify for all concerned that the time for appeal and

for postverdict motions has begun. See Bankers Trust Co. v. Mallis, 435 U.S.

381, 385 (1978); Fed. R. Civ. P. 58 advisory committee’s note to 1963

Amendment. The exceptions to the separate-document rule reflect the view that

such clarification is not necessary for orders disposing of certain motions,

including motions under Rule 59 or 60. The parties are unlikely to be confused

about when a district court has finally disposed of a motion to reconsider, whether

the court disposes of the motion by itself or disposes of it in a memorandum that

                                          -7-
also resolves other motions. Accordingly, entry on the district court’s civil

docket of the M&O, which contained the order denying MSC’s motion for

reconsideration, was sufficient for entry of that order.

       Finally, we reject the possibility that the appeal from denial of the motion

to reconsider might be timely if the time had not yet expired for appeal of another

order in the M&O (if, say, entry of the other order required a separate document).

We recognize that we have said that “a notice of appeal which names the final

judgment is sufficient to support review of all earlier orders that merge in the

final judgment.” McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1104

(10th Cir. 2002). Thus, if the order denying the motion to reconsider “merged in”

another order in the M&O, and that order was not “entered” at the time that the

M&O was entered in the district court’s docket, perhaps there would be additional

time to appeal the order denying the motion to reconsider. In this case, however,

the striking of the motion to reconsider was hardly merged in the order denying

the motion to withdraw as counsel or any of the other orders in the August 7

M&O. Striking the motion was not an interlocutory order “leading up to” one of

the other orders. Id. (internal quotation marks omitted). Therefore, we need not

consider whether a separate document was required for any other order in the

M&O.




                                          -8-
      Because a timely notice of appeal in a civil case is a jurisdictional

prerequisite to our review, see Alva v. Teen Help, 469 F.3d 946, 952-53 (10th Cir.

2006), we GRANT the defendants’ motion to DISMISS the appeal.




                                         -9-
