Plaintiff-appellant Collard appeals the district court's Fed.R.Civ.P. 41(b) dismissal for failure to prosecute and its denial of a new trial and amended judgment, Fed.R.Civ.P. 59. Plaintiff argues that the trial court abused its discretion in granting the motion to dismiss because Plaintiff failed to personally appear at trial. Because we conclude that the notice of appeal was not timely, we must dismiss for lack of jurisdiction.

Judgment in this case was entered on January 8, 1992. Sua sponte, the trial court entered an amended judgment solely to award costs on January 14, 1992. The amended judgment purported to define the commencement of the ten-day period within which a Rule 59 motion could be filed as the date of the entry of the amended judgment, January 14, 1992, rather than January 8, 1992, the date of the original judgment. Aplt.App. at 40.

Plaintiff filed a Rule 59 motion for a new trial on January 24, 1992, more than ten days from January 8, 1992, but within ten days of January 14. The trial court denied the motion on March 30, 1992 and Plaintiff filed a notice of appeal on May 29, 1992.

Concerned about the question of jurisdiction, we requested additional briefing on the issues of (1) whether the January 8, 1992 judgment on the merits was final under 28 U.S.C. Sec. 1291 despite the fact that costs had not been awarded; and, (2) whether Plaintiff's January 24, 1992 post-trial motions were timely and thus tolled the time to file a notice of appeal. Plaintiff maintains that final judgment was not entered until January 14, 1992, thus his appeal is timely.1

The question presented here is whether a judgment amended solely to award costs is a "judgment" under Rule 59. Rule 54(a) defines "judgment" as "any order from which an appeal lies." Fed.R.Civ.P. 54(a); Martinez v. Sullivan, 874 F.2d 751, 753 (10th Cir.1989).

A final judgment under Sec. 1291 must "end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L. Ed. 911 (1945). The January 14 judgment states "that in all other respects [than costs] the Findings of Fact, Conclusions of Law and Judgment [filed] on January 7, 1992, should remain as signed and entered...." Aplt.App. at 39. The January 8, 1992 judgment thus ended the litigation on the merits.

Further, a cost award does not constitute litigation on the merits. Rule 58 states that "[e]ntry of the judgment shall not be delayed for the taxing of costs." Fed.R.Civ.P. 58. The Supreme Court has stated that "a motion for costs ... does not seek 'to alter or amend the judgment' within the meaning of Rule 59(e). Instead, such a request for costs raises issues wholly collateral to the judgment in the main cause of action, issues to which Rule 59(e) was not intended to apply." Buchanan v. Stanships, Inc., 485 U.S. 265, 268-69, 108 S. Ct. 1130, 1131-32, 99 L. Ed. 2d 289 (1988) (quoting White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 446, 102 S. Ct. 1162, 1163, 71 L. Ed. 2d 325 (1982)). Cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200, 202-03, 108 S. Ct. 1717, 1721-22, 100 L. Ed. 2d 178 (1988) (attorney's fees as an element of costs are collateral).

A trial court may not extend, sua sponte or otherwise, the time for a party to file a Rule 59(e) motion when it enters an amended judgment solely to award costs. Rule 6(b) expressly prohibits a trial court from extending the time to file such a motion. Fed.R.Civ.P. 6(b). See also First Nationwide Bank v. Summer House Joint Venture, 902 F.2d 1197, 1199 & n. 2 (5th Cir.1990) (Rule 6 time limit not extended by filing of amended judgment).

Fed.R.App.R. 4(a)(1) requires a party to file the notice of appeal within 60 days of entry of judgment when the United States is a party. Because Plaintiff's Rule 59 motion was untimely and he did not file a notice of appeal until May 29, 1992, more than 60 days after the entry of the final judgment on January 8, 1992, we are without jurisdiction to hear his appeal. "[T]he taking of an appeal within the prescribed time is mandatory and jurisdictional." Budinich, 486 U.S. at 203, 108 S.Ct. at 1722 (citing Fed.R.App.P. 2, 3(a), 4(a)(1), 26(b)). "A court lacks discretion to consider the merits of a case over which it is without jurisdiction...." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80, 101 S. Ct. 669, 676-77, 66 L. Ed. 2d 571 (1981) (cited in Budinich, 486 U.S. at 203, 108 S.Ct. at 1722).

DISMISSED.

In dismissing this appeal, I am convinced that the majority opinion disregards clearly applicable precedents of the Supreme Court and of our court as well. This leads to a particularly unjust result in view of circumstances plainly shown in our record and brought squarely to our attention by the plaintiff-appellant Collard.1 Therefore I respectfully dissent.

Collard's Memorandum Brief on the jurisdictional questions, which we requested, took a very clear position on the controlling issue. While our order posed four questions not focusing on the time frame relied on by Collard for filing his notice of appeal, Collard referred early in his memorandum to the interpretation adopted by the trial judge on the filing schedule. At page 2, he pointed out that after the original judgment entered January 8, 1992, there was an amended judgment entered on January 14, 1992, which awarded costs to the other plaintiffs.2 That amended judgment also restated the judgment of dismissal against Collard on the merits without costs. Lastly the judge's order told the parties that the ten-day time period for filing a Rule 59 motion "shall commence to run from the date of entry of this Amended Judgment." App. of Appellant at 40 (emphasis added).

Relying on this assurance by the trial judge, Collard served a motion for a new trial under Rule 59(e) on January 24, 1992, within the ten-day period from the entry of the amended judgment on January 14. He thus did so after all the parties, including Collard, had been told by the trial judge that January 14 was the controlling date from which the time for serving a Rule 59(e) motion would run.

On March 30, 1992, an order was entered by the trial judge denying Collard's motion for a new trial after extensive discussion of the merits. In that order, the trial judge stated that the plaintiffs had "filed a timely motion, pursuant to Rules 52(b) and 59(a) ... to amend or make additional findings ... and for a new trial." App. of Appellant at 43 (emphasis added). This gave Collard further assurance that calculation of the time for filing his notice of appeal should be based on entry of the order denying his motion for a new trial, which the judge treated as "timely." Id. Collard's subsequent notice of appeal filed on May 29, 1992, was timely (within 60 days of the denial of his motion for a new trial as provided by Fed.R.App.P. 4(a)(1) and (4)), assuming reliance was proper on the trial judge's assurance that the time for a Rule 59(e) motion had begun to run with entry of the amended judgment and that Collard's motion had been timely filed.

In sum, all the parties were specifically assured by the trial judge that January 14 was the controlling date from which the time for serving a Rule 59 motion would run. On the basis of that time frame, Collard could reasonably conclude that his motion for a new trial served on January 24 was timely. App. of Appellant at 114-131. Then, with reliance on the March 30, 1992, order denying Collard's motion for a new trial, Collard likewise could reasonably conclude that his notice of appeal filed on May 29 was timely. Such unique circumstances, arising from the assurances of the trial judge, have long been recognized as valid grounds to avoid the harsh result of dismissal.

It is, of course, true that a district court "may not extend the time for taking any action under Rules 50(b) ... and (e) ... except to the extent and under the conditions stated in them." Fed.R.Civ.P. 6(b). Nevertheless where circumstances such as Collard relies on here exist, precedents of both the Supreme Court and our court support the timeliness of Collard's notice of appeal. In Stauber v. Kieser, 810 F.2d 1 (10th Cir.1982), we denied a motion to dismiss for lack of appellate jurisdiction under "unique circumstances" similar to those presented here. Stauber, 810 F.2d at 1. The appellants in Stauber, like Collard here, relied on the district court's extension of time to serve a Rule 59(e) motion and consequently timed their subsequent notice of appeal on the time frame indicated by the district court's order. Recognizing that "[d]istrict courts are without jurisdiction to extend the time to serve motions under Rule 59(e)," (id.), we nonetheless held that

[I]t is here obvious that plaintiffs relied to their detriment upon the district court's statements and action. That is, by granting an extension and then accepting the Rule 59(e) motion, the district court led plaintiffs to believe that those actions were properly done. As a consequence, plaintiffs permitted the thirty-day appeal period to expire ... without filing their notice of appeal. In these "unique circumstances," it would now work a great hardship on plaintiffs to dismiss the appeal as untimely. Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 84 S. Ct. 397, 11 L. Ed. 2d 404 (1964). The court is of the opinion that to do so would not be in the best interests of justice.

Id. at 1-2 (emphasis in original).

We have recently and emphatically reaffirmed Stauber in In re Themy, 6 F.3d 688, 690 (10th Cir.1993), stating:

We, too, have approved a late filing when a court exceeded its jurisdiction in extending the time to file a Fed.R.Civ.P. 59(e) motion. In Stauber v. Kieser, 810 F.2d 1, 1-2 (10th Cir.1982), we held that there were "unique circumstances" justifying the acceptance of an untimely appeal after the court's purported extension of time led the parties to believe it was properly done and induced their detrimental reliance. This was so despite the fact that a timely notice of appeal is a jurisdictional requirement. See, e.g., Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S. Ct. 556, 560, 54 L. Ed. 2d 521 (1978).3

This principle we have followed was announced in Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 84 S. Ct. 397, 11 L. Ed. 2d 404 (1964). There the petitioner served a notice of post-trial motions 12 days after an adverse ruling. The rules then as now required that post-trial motions to amend findings be presented within ten days. No objection was made by the government to the timeliness of the motions.4 Moreover the trial judge specifically declared the motion for a new trial was made "in ample time." Id. at 385, 84 S.Ct. at 397. Timed from the denial of the post-trial motions, a notice of appeal was timely filed within 60 days, although not within 60 days of the original entry of judgment. A dismissal of the appeal by the court of appeals as untimely was reversed. The Supreme Court noted the motions were served within ten days after counsel received notice of entry of judgment and that

[Petitioner] claims, moreover, that he relied on the Government's failure to raise a claim of untimeliness when the motions were filed and on the District Court's explicit statement that the motion for a new trial was made "in ample time"; for if any question had been raised about the timeliness of the motions at that juncture, petitioner could have, and presumably would have, filed the appeal within 60 days of the entry of the original judgment, rather than waiting, as he did, until after the trial court had disposed of the post-trial motions.

375 U.S. at 386, 84 S. Ct. at 397. In view of the "unique circumstances," the Court vacated the dismissal and remanded for the appeal to be heard on the merits. Id. at 387, 84 S.Ct. at 397.5

The unique circumstances here are apparent. First there was the specific statement by the trial judge in his amended judgment, p 4, that the time for filing a Rule 59(e) motion would run from entry of the amended judgment. App. of Appellant at 40. Further, there was a clear statement by the trial judge that Collard's motion for a new trial was a "timely" motion; the judge's order denying Collard's motion stated, p. 1, that after entry of the amended judgment, "the plaintiffs filed a timely motion, pursuant to Rules 52(b) and 59(a) Fed.R.Civ.P., to amend the judgment and for a new trial." App. at 43 (emphasis added). And the judge then discussed the merits of the motions in detail for 12 pages. Faced with all these circumstances, "it is here obvious that [plaintiff] relied to [his] detriment," Stauber v. Kieser, 810 F.2d at 1, in filing his notice of appeal on the validity of the time frame established by the order denying his motions. In light of these compelling circumstances and precedents, I am unable to agree to dismissal of Collard's appeal.

I am fully satisfied that Collard's reliance on the trial judge's assurances has been squarely presented to us. When the issue about our appellate jurisdiction was noted by this court sua sponte, Collard's memorandum that we requested,6 pointed out at page two that the amended judgment stated the time for filing post-trial motion under Rule 59 would run from the date of entry of the amended judgment. Memorandum Brief of Collard at 2. Then on the first page of his "Argument," before going into his answer to our four questions on jurisdiction, Collard pointed to the Amended Judgment, stating:

Paragraph four (4) of the Amended judgment (Exhibit "A" hereto) states:4. The ten-day time period for filing of a motion pursuant to Rule 59 Fed.R.Civ.P., and as provided for in Rule 59(e) of said rule, shall commence to run from the date of entry of this Amended Judgment.

Memorandum Brief of Collard at 3 (emphasis added). Detailing how he calculated the time for serving his motion for a new trial, Collard asserts his motion was served "well within the prescribed period." Id. at 4. Collard then argues that these facts "render moot the jurisdictional questions posed by this court." Id.

Likewise, in response to the court's third jurisdictional question,7 Collard states:

Appellant submits that the tolling motions were timely served within the prescribed period in accordance with Rule 6, Federal Rules of Civil Procedure, provisions for computation of time, ... in view of the lower court's statement in paragraph four (4) of the Amended Judgment.

Id. at 5 (emphasis omitted and added).

In sum, the "unique circumstances" argument is squarely presented to us by Collard's Memorandum and our record.8 To me, this clearly invokes the equitable principle of the Supreme Court's Thompson case, our Stauber case and our recent Themy opinion, upholding jurisdiction where reliance has been placed on a judge's specific statements. No principled reason for denying Collard the benefit of the foregoing cases is suggested.

As we held in Stauber, 810 F.2d at 1-2, in unique circumstances like these, "it would now work a great hardship on plaintiffs to dismiss the appeal as untimely. Thompson v. Immigration and Naturalization Service...." And like the Stauber court, I am convinced that dismissal here "would not be in the best interests of justice." Id. at 2. Accordingly, I must respectfully dissent.