                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-26-2009

In Re: Diet Drugs
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1339




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Recommended Citation
"In Re: Diet Drugs " (2009). 2009 Decisions. Paper 1687.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1687


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 08-1339
                                       ___________

                           IN RE: DIET DRUGS
            (PHENTERMINE/FENFLURAMINE/DEXFENEFLURAMINE)
                     PRODUCT LIABILITY LITIGATION


                                   Geraldine J. Gibson,
                                                  Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                    (D.C. Civil Action Nos. 99-cv-20593, MDL 1203)
                      District Judge: Honorable Harvey Bartle, III
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 24, 2008

              Before: MCKEE, HARDIMAN AND ROTH, Circuit Judges

                             (Opinion filed March 26, 2009)
                                     ___________

                                        OPINION
                                       ___________

PER CURIAM

       Geraldine Gibson sought to register for benefits under a trust established in a

nationwide Fen-Phen litigation settlement. However, she did not obtain a private

echocardiogram in time to preserve her rights to benefits. In the District Court, she
argued that she remained eligible to receive benefits because her failure to meet the

echocardiogram deadline could be attributed to excusable neglect. The District Court

rejected Gibson’s contention, detailing its reasons in a nine-page memorandum. The

District Court’s one-page, separately paginated order directly following the memorandum

was entered on the docket on November 27, 2007. On January 7, 2008, Gibson filed her

notice of appeal.

         The issue is whether the separate judgment rule saves Gibson’s appeal from being

dismissed as untimely filed. A notice of appeal in a civil case in which the United States

is not a party is timely if it is filed within 30 days of the entry of the order or judgment

being appealed. See Fed. R. App. P. 4(a)(1). If Rule 58 of the Federal Rules of Civil

Procedure requires a separate document, as it does in this case, the order is not considered

entered until it is entered on the docket under Rule 79(a) of the Federal Rules of Civil

Procedure and the earlier of these two events occurs: (1) the order is set forth on a

separate document, or (2) 150 days have run from the order’s entry on the docket

pursuant to Rule 79(a). See Fed. R. App. P. 4(a)(7)(A)(ii). If the District Court did not

issue its order on a separate document, then Gibson had 180 days to file her notice of

appeal. See Leboon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 223 (3d Cir.

2007).

         On balance, we conclude that the District Court issued its order on a separate

document. An order is considered a separate document if (1) it is self-contained and

separate from the opinion, (2) it notes the relief granted, and (3) it omits (or at least

                                               2
substantially omits) the court’s reasons for disposing of the claims. See Leboon, 503 F.3d

at 224. The District Court’s order in this case easily satisfies the second and third criteria.

In the order, the District Court clearly stated that Gibson’s motion “is DENIED.” Also,

on the order page, the District Court referred to “the reasons stated in the accompanying

Memorandum.” Whether the District Court’s order satisfies the first criterion is a closer

case. However, given that the dated and signed order is on its own full page that is

captioned, titled, and paginated separately from the District Court’s memorandum, we

conclude that it is self-contained and separate from the opinion.1 Compare Leboon, 503

F.3d at 224, with Local Union No. 1992 of IBEW v. Okonite Co., 358 F.3d 278, 285 (3d

Cir. 2004).

       Because the District Court complied with the separate document rule of Rule 58,

we consider the District Court’s order entered on November 27, 2007. Gibson did not file

her notice of appeal until January 7, 2008, more than 30 days later. Because Gibson’s

notice of appeal was untimely filed, this Court lacks jurisdiction to consider her appeal.

See Bowles v. Russell, 127 S. Ct. 2360, 2363-66 (2007); Browder v. Director, Dep’t of

Corrections, 434 U.S. 257, 264 (1978). Accordingly, we will dismiss Gibson’s appeal.




   1
   However, the District Court may wish to take the additional step of separately
docketing its orders in the future.

                                              3
