Correspondences between Guinier and Whatley

    Lo/L2/84

t0/2s/84

L0/2s/84

LL/ 2e / 84

Ivlotion to Amend, proposed
with cover letter from LG

Amended Judgrment

BOZE}IAN v. I,AMBERT

Amended Judgment and
to David christy

Stipulation,

Motion for Extension of TIme for Filing Notice of Appea}
(Respondents I 

)

Order granting extension of time.

t
2

3



FILEDIN THE UNITED STATES DISTRICT CQTIRT
FOR THE MIDDLE DISTRICT OF ALABAIIA

NORTHERN DIVISION

MAGGIE S. BOZEMAN

Petitioner
vs.

EALON M. I-AI.{BERT; et a1

Respondents

Nov 2 e ts84

) THOtytAS C. C6r:{.n, CLERK) "ffi
) crvrl ACTION NO. 83-H-579-N

)

)

ORDER

Ihis cause is now bpfore the Court on respondents'

motion pursuant Eo RuIe a(a) (5) of the Federal Rules of

Appellate Procedure for an extension of thirry days in which

to file an appeal of the Amended Judgment filed on 0ctober 25,

L984. Upon consideration of said motion, and for good cause

shown, it is

ORDERED that said motion be and the s.me hereby is

granted.

DONE this 29th day of November, L984.
r-://W4rt a.rr-
UNITED STATES DTSTRICT JIDGE



aa



IN THE UNITED STATES DTSTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAGGIE S. BOZEMAN, )
)

Petitioner, )
)vs. ) crvrr, AcrroN No. 83-H-579-N
)

EALON M. LAMBERT, €t dI., )
)

Respondents. )

MOTION FOR EXTENSTON OF TIME

Respondents respectfully move this court for an

extension of thirty (3O) days in which to notice an appeal of

ttre Amended Judgment filed on or about October 25, 1984.

This motion is made pursuant to RuIe  (a)(5) of the Federal

Rules of Appellate Procedure. As grounds, respondents show

as follows:

1. This court entered what appeared to be a final
judgrment on April 13, 1984. An appeal was filed shortly

thereafter, on or about April 2'7, 1984.

2. That appeal was docketed in the Court of Appeals

for the Eleventh Circuit as No. A4-7286.

3. On October 25, 1984, this court amended the

judgment pursuant to the uncontested motion of respondents

and the stipulation of both parties.

4. The said amendment was Nunc Pro Tunc and was

intended to remedy an arguable technical deficiency in the

Final Judgment of April 13, 1984.



5. Very shortly after this court entered the Amended

Judgment, petitioner-appeIIee moved in the Eleventh Circuit
to dismiss the appeal in this case (tto. A4-7286) on the same

grounds. That motion is attached hereto as Exhibit A.

6. The Eleventh Circuit has not yet acted on the said

Motion to Dismiss (ttre) Appeat. However, the time for filing
a notice of appeal from the October 25 Amended Judgment may

be running in the meantime. Respondents do not concede that
it would be necessary to appeal ane$/ from the Amended

Judgment but feel that this motion is necessary so that no

question arises about the timeliness of a new appeal in the

event that the Eleventh Circuit court rules favorably on the

appellee's motion to dismiss.

7. RuIe  (a)(5) of the Federal Rules of Appellate

Procedure states that, "The district court, upon a showing of

excusabl-e neglect or good cause, may extend the time for

filing a notice of appeal upon motion fited not later than 30

days after the expiration of the time prescribed by this RuIe

 (a). . ." (emphasis supplied).

8. This nrction is clearly not made for purposes of

delay and respondents sincerely contend that the grant of

this motion would be in the interest of justice.

WHEREFORE, respondents respectfully move this court for

an extension of thirty (30) days after the expiration of the

time generalty prescribed by RuIe  (a) in which to file an



appeal from the

event that euch

ADDRESS OT COUNSEL:

c/o Attorney General's Annex
669 South Lawrence Street
Montgom€rlr Alabama 36104
( 20s ) 373-63s1

Amended Judgment of October

new notice of appeal should

Reepectfully

25, 1984, in the

prove necessary.

submitted,

PONDENTS
P. M. s
ATTORNEY F'OR



CERTIF'ICATE OF SERVICE

,l
r hereby certify that r have this 20fr a^y of

November, 1984, served a copy of the foregoing on the

attorneys for the Petitioner by placing aame in the United

States mail, postage prepaid and addressed as follows:

Vanzetta Penn Durant
Attorney at Law
639 Martha Street
Montgom€rlr AL 36104

Lani Guinier
Attorney at Law
99 Hudson Street
16 Floor
New York, I{Y 10013

ADDRESS OF COUNSEL:

c/o Attorney General's Annex
669 South Lawrence Street
Montgomerlr Alabama 36104
( 205 ) 373-63sr

4

P. M. JO
ATTORNEY FOR



IN THE

I,N.IITED STATES COURT OF APPEATS

FOR THE

ELEVEMIi CIRCUIT

Nc. 84-7286

IIIAGGIE S. BOZB{AN,

Appe11ee, )

vs. )

EATON I'1. LAI'{BERT, €t AI., )

Appellants. )

)

UOTION TO DISMISS APPEAI

Appellee I'[aggie s. BOZeman, by her attorney, hereby moves

to dismiss this appeal for lack of jurisdiction Pursuant to

Federal Rules of civil Procedure 54(b) and 28 U.S.C. SS129I, 1292

(1982). The District court judgment of April 13, 1984' from which

appellants have noticed this appeal, does not comport with Fed' R'

civ. P. 54 (b) . The District court granted appellee's Motion For

Su:nmary Judgment on some, but not aI1, cf the clai:rs raised in her

petition. The District Court judgiment is not a final judgment in

that the District court did not expressly determine that there is

no just reason for delay of this appeal'

while this motion is pending, appellee further requests

an enlargement of time within which to file her brief of 20 days

Exurcff /



from the date this Court rules on the pending motion'

RespectfullY Yours,

Dated3 OcEober 25, L984

I,ANI GUINIER
99 lludson Street
15th Floor
New York, New York 10013
l2L2) 2r9-I900

VANZETTA PENN DURANT
539 Martha Street
t'lontgom€EY, AI 36104
(20s1 252-7337

Attorneys for APPelIee

t,

-2-



In The

T'NITED STATES COI,'RT OF APPEALS

For The

EI.E\TENTH CIRCUIT

APPellee,

vs.

EAIPN l{. LAUBERT, €t aI' '

)

)

)

)

No.84-7285

Appellants -

onApril13,lgS4thecourtbelowgrantedappellee's

tllotionforSrrmaryJudgmentontwooftheclaj.msraisedbyher
petition for Babeas corpus. Appellants noticed ttris appeal

on April 27, 1984'

Inordertomakeitsapril13,lgS4orderfinalunder

Fed.R'Civ.Pro.54(b},ttredistrictcourtBustexpressly
determinethatthereisnojustreasonfordelayandthatits
decisionuPonsolaebutless.thanalltheclainsisreadyfor
appeal. Sears Roebuck v' t{ackey' 351 U' S' 427 ' 435 (1956) '

In the absence of such exPress certification under Bule 54 (b),

thegrantofsrrmmaryjudgmentisnotappealable.}tcLauqhlinv.
citv of LaGranqe , 662 ?.2d 1385 (Ilttt Cir' 1981); l{elancon v'

InsuranceCo.ofNorth}:rrericav.Coatingspecialists,Inc.,
476 r.2d 594 (5th Cir. 19?3) . The Rule 54 (b) certificate is

BRIEP IN SUPPORT 8r6 Drsursq



an essential prereguisite for appeal gince the April 13, 1984

judgrnent did not adjudicate all the claj:ns raised by appellee-

petitloner. Euckeby v. Frozen Food Exp.r 555 F.2d 542, 5{5-5

(5th Cir. L9771.

Even though it ras the understanding of the parties

that the district court intended to enter a final appealable

judgment, the absence of tlre RuIe 54(b) certificate requires

dismissal of the instant appeal.

GUINIER
99 Eudson Street
New York, N.Y. 10013
(2L2) 21e-1900

VAI{ZETTA DT'RA}flT
639 Martha Street
llontgomery, AL 35104
(20s1 262-7337

Attorneys for Appellee

Dated: October 25, 1984

-2-



oa



( t...-...... o
F I LED

.--.,

(.r,
UNITED srArES DIsrRIcr couRr gCT 25€84

rHo$,lAs t t*nojl t**

fn The

FOR THE

MIDDLE DISTRTCT OE AIABAI{A ,3Y

MONTGOMERY DIVISION
ffi-utv cLERK

I{AGGIE S . BOZEI{.AN, )

) No. B3-H-579-N

)

Petitioner,

EAION I'1. LAMBERT, €t aI,,
\r

Respondents. t

)

JULIA P. WILDER,

Petitioner, )

v. ) No. 83-H-580-N

EALON M. LAMBERT, €t a1., )

RespondenLs. 
)

AMEND:D JUDGMENT

fn accordance with the memorandum opinion of April 13, 1984,

and the orders of the sa.Ine date granting petitioners i motions f or

suflrmary judgment, it is hereby

ORDERED that the Judgnnent of April 13, 1994 be amended NLIIiC

PRO TUNC to add the following:

The Court directs entry of a final judgmrent for petitioners

Bozeman and Wilder having deter:nined that there is no just reason

for deIay.

v.

D9NE this *U^y of october , Lg84.

d-
UNITED STATES DISTRICT JI.JDGE



OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT

P.O. BOX 7fi
MONTGOMERY, ALABAMA A6tOI

oFTtctaL !u3tN:31
PEXALTY 7OR ?iIVATE U!: 

'tOO

IilII

"OIYAO: 
AXD 7::' ?AID

uxtTED 3TAYEt COUtTI
u3c 423

fi;13"i.!:i";:1","e and Educarional Fund,O
99 lludson Street
New York, New Yokr 10013_*'

ffi'H
{ nysu tr= 4U' 1Y- 

----rl}
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oI



October 12, 1984

David Christy, Esq.
Attorney General Annex
659 South Lawrence Street
Dlontgom€ry, Alabama 36104

RE: Maggie S. Bozeman v. E.
No.83-H-579-N
Ju1ia P. Wilder v. E. M.
No. 83-H-580-N

M. Lambert, €t dl.,
Lambert, €t al.,

Dear Mr. Christy:

f enclose a Motion to Amend, a proposed Amended
Judgrment and a Stipulation for you to file with
the District Court. please send me a filed copyof each.

Please call me as soon as you know whether Judge
Hobbs will sign the Amended Judgment. In the
meantime, rather than lr{ove to Hold proceedings
in Abeyance in the Court of Appeals, I can simply
ask the Clerk in the Eleventh Circuit for an
extension for filing my brief. I trust you have
no objection but will make no representalions tothe Clerk until I hear from you.

LGl r
Enclosures

Lnler

99 HUDSON STBEET (212) 21 9-1 900 NEW YORK. N. Y. 10013



I\,IAGGIE S. BOZEI,,IAN,

Petitioner,

v.

EALON }1. LAII{BERT, Et dI.,

Respondents,

JULIA P. WILDER,

Petitioner,

EALON I{. LAI{BERT, et a1.,

Respondents.

IN THE

T]NITED STATES DISTRICT COURT

F'OR THE

MIDDLE DISTRICT OF ALABAI,IA

I{ONTCOMERY DTVTSION

)

)

)

)

)

)

)

)

)

)

)

No. 83-H-579-N

No. 83-H-580-1.;

STIPULATION

Respondents, E. ltl. Lambert, €t dI., and petitioners
Ju1ia Wilder and Maggie Bozeman, by and through their
attorneys, hereby stipulate as follows:

1. The Courtrs Judgrment of April 13, 1984 granting

petitioners' ir{otions for summary Judgrnent did not

dispose of all claims pending in the District court.
2. Nevertheress, it was the understanding of the parties

that the court intended its Aprir 13, 1994 Judgrnent

to be a final appealable order on the craims raised

by the Ivtotions for Summary Judgrment.



3. It has come to the attention of the parties

thatrdespite the Courtrs clear intentrthere

may be a technical, jurisdictional obstacle to

pursuing an appeal in that the April 13th

Judgment does not recite the formal language

required by Fed. R. Civ. Pro. 54 (b).

Rule 54 (b) states that the Court may direct entry

of a final judgment as to one or more but fewer

than al1 the claims presented in an action "only

upon an express determination that there is no

just reason for delay. ." Curtiss-Wriqht

Corp. v. General Electric Co. , 446 U.S. 1 (1980);

I"lcLaugh1in v. City of LaGranqe , 662 F.2d 1385

(lIth Cir. 1981).

4.

99 Hudson Street
I6th Floor
tiew York, N.Y. 10013

Attorney for Petitioners

Dated: October L2, 1984

c/o Attorney Generalrs Annex
669 S. Lawrence St.
It{ontgom€ry, AL 35104

Attorney for Respondents

-2-



^'

In The

T'NITED STATES DISTRICT COURT

For The

UIDDI,E DISTRICT OF AI,ABAI'IA

IITONTCOI{ERY DIVI S ION

I*{AGGIE S. BOZEMAN,

Petitioner

v.

EAION It{. LAMBERT, €t a}.,
Respondents

JULIA P. WILDER,

Petitionei,

v.

EAIPN !,t. I"A!,lBERT, €t dI.,

Respondents.

No. 83-E-579-H

No. 83-H-580-N

I,IOTIOIi TO AI{END JT,DGI{ENT

TO THE SAID HONORASLE COURT:

Now comes }tespondenLs, Ealon M. Lambert, €t aI., with the

acquiescence of petitioners llaggie S. Bozeman and Julia P'

Wilder, by and through their attorney, and Pursuant to RuIe 50 (a)

of the Federal Rules of Civil Procedure, respectfully move

on the basis of the attached stipulation that this Court amend

its Judgrment of April 13, 1984 to comply with Fed. R. Civ' Pro'

54(b). Respondents request, wittr the acquiescence of petitioners,



that this Court amend its April 13, 1984 judgrment to conform

with the reguirements of Rule 54 (b) to reflect its intent to
render a final judgment.

Respectfully submitted,

,/ l,t. Qon oh-..-

Dated:

CERTIFICATE OT SERVICE

r certify that r have, this /QU uay of october,

1984, served a copy of the foregoing on the attorney for

the Petitioners by placing a copy of sErme in the U.S. llail,

first class postage prepaid and addressed as follows:

Lani Guinier
Attorney at Law
99 Hudson Street
16th Floor
New York, NY 10013

-2-



MAGGIE S. BOZEiI,IAI{,

Petitioner,
v.

In The

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF ALABA}IA

}IONTGOMERY DIVISION

)

) no. B3-H-579-N
)

EAION M. LAIIBERT, €t dI.,
Respondents. )

JULIA P. WILDER,

Petitioner, )

v. ) no. 83-H-580-N

EAION M. LAMBERT, €t a1., )

Respondents. 
)

AII{END3D JT]DGIUENT

rn accordance with the memorandum opinion of April 13, 1994,

and the orders of the same date granting petitionersi motions for
summary judgment, it is hereby

ORDERED that the Judgrment of April 13, 1934 be amended NUNC

PRO TUNC to add the following:

The Court directs entry of a final- judgiment for petitioners
Bozeman and Wilder having deter:nined that there is no just reason

for de1ay.

DONE this _ day of October, 1994.

I,NITED STATES DTSTRICT JUDGE



STeTE OF ALABAMA
OFFICE OF

ATTORNEY GENERAL
MONTGOMERY, ALABAMA 36T30

Lani Guinier
Attorney aL Law
99 Hudson Street
16th Floor
New York, NY L00L3

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