CSX Transportation Inc v. City of Garden City, 99-12799

Citation235 F.3d 1325
Decision Date15 December 2000
Docket NumberNo. 99-12799,99-12799
Parties(11th Cir. 2000) CSX TRANSPORTATION, INC., National Railroad Passenger Corporation, Plaintiffs- Appellants, v. The CITY OF GARDEN CITY, Defendant-Third-Party, Plaintiff-Appellee, ARCO, Inc., Third-Party Defendant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Appeal from the United States District Court for the Southern District of Georgia, (No. 98-00223-CV-4), B. Avant Edenfield, Judge.

Before ANDERSON, Chief Judge, and DUBINA and HILL, Circuit Judges.

HILL, Circuit Judge:

CSX Transportation, Inc. and the National Railroad Passenger Corporation filed this action against the City of Garden City, Georgia seeking indemnification in connection with a train/truck collision on the city's construction site. The district court entered summary judgment for the defendant city based upon municipal immunity. CSX Transportation, Inc. and the National Railroad Passenger Corporation bring this appeal.

I.

In 1996, the City of Garden City, Georgia (Garden City or the City) decided to install water and sewer lines along the public rights-of-way that ran across, under, and parallel to CSX Transportation, Inc.'s (CSX) railroad tracks. The City contracted with CSX to use CSX's rights-of-ways and agreed to indemnify CSX for any damages arising out of the City's use of the rights-of-way. Under the contract, the City agreed to maintain insurance to cover the indemnity obligations it had assumed.

Garden City employed ARCO, Inc. as the general contractor for this project which employed CARLCO Trucking, Inc. as a sub-contractor. On October 9, 1997, a CARLCO employee drove a tractor-trailer truck to the City's work site to remove equipment. As he crossed CSX's tracks, his truck stalled on the tracks where it was hit by a National Railroad Passenger Corporation (Amtrak) passenger train. CSX paid damages to passengers on the train and sued Garden City for indemnification under their agreement. Garden City filed a third-party claim against its contractor, ARCO.

Sometime later, the City filed a motion for summary judgment against CSX, asserting that it was immune to CSX's claim for damages for a number of reasons. The district court agreed with the City1 and, on July 12, 1999, granted it summary judgment. The court noted, however, that Garden City's third-party complaint against ARCO for indemnification was still pending and "the Clerk should not close this case." Subsequently, Garden City with the consent of ARCO and approval of the court, voluntarily dismissed without prejudice its third-party claim against ARCO. CSX and Amtrak filed this appeal.

Concerned about the finality of the summary judgment, this court, on its own motion, directed the parties to brief and argue the issue of our jurisdiction to hear this case.

II.

To be appealable, an order must either be final or fall into a specific class of interlocutory orders that are made appealable by statute or jurisprudential exception. See 28 U.S.C. 1291, 1292; Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 375-76 (11th Cir.1989). A final decision is " 'one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir.1983) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). A judgment that does not effectively terminate the litigation is not final or immediately appealable unless the district court certifies the judgment for immediate appeal under Fed.R.Civ.P. 54(b). See 28 U.S.C. 1291; Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir.1984); In re Yarn Processing Patent Validity Litigation, 680 F.2d 1338, 1339-40 (11th Cir.1982).

We have held many times that a partial adjudication on the merits, followed by a voluntary dismissal without prejudice of a pending claim, does not effectively terminate the litigation and, therefore, does not satisfy the finality requirement of 28 U.S.C. 1291. Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302-03 (5th Cir.1978). See also State Treasurer v. Barry, 168 F.3d 8, 11-13 (11th Cir.1999); Construction Aggregates, Ltd. v. Forest Commodities Corp., 147 F.3d 1334, 1336-37 (11th Cir.1998); Mesa v. United States, 61 F.3d 20 (11th Cir.1995). That is what happened in this case. The district court's July 12 entry of summary judgment was a partial adjudication on the merits. It was followed by the voluntary dismissal without prejudice of the remaining pending claim-Garden City's third-party claim against ARCO. Therefore, if Ryan applies, this series of events did not terminate the litigation. 577 F.2d at 302-03 (summary judgment plus a voluntary dismissal without prejudice of a remaining claim does not effectively terminate litigation).

As a threshold matter, then, there does not appear to be a final, appealable order in this case. Inasmuch as neither party had the court certify the July 12 summary judgment for appeal under Rule 54(b), we do not have jurisdiction to hear this appeal unless there is some other reason why the judgment should be considered final.

CSX argues that we have jurisdiction under the Jetco exception to the finality rule. Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1231 (5th Cir.1973). Under this exception, a series of court orders, considered together, may be said to constitute a final judgment if they effectively terminate the litigation. Id. In this case, the summary judgment plus the entry of the voluntary dismissal effectively terminated this litigation, leaving nothing else for the district court to do, which it recognized by closing the case. CSX argues that this series of court orders may be considered a final judgment.

Furthermore, CSX argues that this series of orders should be considered a final judgment because if they are not, Garden City and ARCO will receive a windfall. If there is no final judgment, CSX will forever lose its right to appeal in this case.2

This result, CSX argues, is not required by Ryan and its progeny. The common theme of these cases is that jurisdiction cannot be manufactured. For example, when a district court enters an adverse, but otherwise non-appealable, ruling against a party, that party may seek to appeal the ruling immediately by dismissing without prejudice his remaining claims-sort of warehousing them for later revival if needed-attempting to manufacture a final, appealable judgment. We have consistently rejected such attempts to obtain appellate review of an otherwise non-final order. See State Treasurer, 168 F.3d at 11-12, 16 (plaintiff and defendant stipulated to the dismissal without prejudice of remaining counterclaim and plaintiff sought to appeal); Construction Aggregates, 147 F.3d at 1335-36 (defendant dismissed remaining counterclaim without prejudice and then sought to appeal); Mesa, 61 F.3d at 21 (plaintiff dismissed remaining claims without prejudice and then sought to appeal); Ryan, 577 F.2d at 300 (plaintiff dismissed remaining claims without prejudice and sought to appeal).

CSX points out that it is not guilty here of such an attempt to manufacture jurisdiction. After the summary judgment, it had no remaining claims. Nor did it participate in any way in Garden City and ARCO's agreement to dismiss without prejudice Garden City's remaining third-party claim.

This case is the mirror image of Ryan, where the parties attempted to manufacture appealability. Here, Garden City and ARCO appear to have undertaken to manufacture non-appealability. If there is no final appealable order in the case, CSX will be deprived of any appellate review of the dismissal of its lawsuit and will be left holding the proverbial (and unenviable) "bag."

We have noted this possibility before. In State Treasurer, we expressed concern that under the Ryan rule, an appellant not involved in the decision to dismiss a remaining claim without prejudice and, therefore, not guilty of conspiring to create jurisdiction, would nonetheless lose his right to appeal. 168 F.3d at 21 (Cox, J., specially concurring). We said then that "[w]hatever the wisdom of punishing crafty litigants, it is hard to justify punishing their victims." Id. CSX urges us to transform this concern into a new rule for this circuit.

There is some authority for this result. In Schoenfeld v. Babbitt, 168 F.3d 1257, 1265-66 (11th Cir.1999), we held that where the appellant had dismissed its claims against a defendant without prejudice before the district court entered judgment for the remaining defendant, Ryan did not apply and that order was final and appealable.

In this case, however, the voluntary dismissal followed the entry of the non-final order and, therefore, is asserted to come under the rule of Ryan. Even if the rule is harsh, we are bound to follow it if it applies to this case. The issue is whether it does apply.3 We conclude that it does not.

In this case, a summary judgment was entered against the plaintiff. Then, the defendant and the third-party defendant stipulated to the dismissal of the remaining third-party claim. The plaintiff did not participate in any way in the voluntary dismissal of the third-party claim. The defendant and third-party defendant agreed to that disposition. As nothing remained pending in the lawsuit, the district court ordered the Clerk to close the case. The plaintiff then filed a notice of appeal of the judgment which had been entered against it prior to the voluntary dismissal.

Under these circumstances, the rule of Ryan is inapplicable. Because the appellant did not participate in the voluntary dismissal of the remaining claims, there was no collusion between it and the parties dismissing the remaining claim. Therefore, there was no attempt to manufacture jurisdiction. On the contrary, the plaintiff/appellant stands to lose all right to appeal if the rule of Ryan applies under these circumstances....

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