King v. Space Carriers, Inc., 120

• Decision Date: 08 March 1979
• Docket Number: No. 78-1873,A,No. 120,120,78-1873
• Parties: Cletus KING, Robert Tinney, Robert Ranniger, Appellants, v. SPACE CARRIERS, INC., and Teamster General Drivers Union, Localppellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 63

591 F.2d 63

Cletus KING, Robert Tinney, Robert Ranniger, Appellants, v. SPACE CARRIERS, INC., and Teamster General Drivers Union Local No. 120, Appellees No. 78-1873.

United States Court of Appeals Eighth Circuit.

March 8, 1979.

Stanley J. Mosio, St. Paul, Minn., on brief, for appellants.

Bruce A. Finzen, Robins, Davis & Lyons, St. Paul, Minn., on brief, for appellee, Teamster General Drivers Union, Local 120.

Emery W. Bartle and Jay L. Bennett, Dorsey, Windhorst, Hannaford, Whitney & Halladay, Minneapolis, Minn., on brief, for appellee Space Carriers, Inc.

Before BRIGHT, STEPHENSON and McMILLIAN, Circuit Judges.

ORDER

This case comes before the court on the "request" of appellee Teamster General Drivers Union Local No. 120 for the court to dismiss this appeal as frivolous. Because frivolity is not an appropriate basis for a motion to dismiss an appeal in this circuit, we deny the motion.

In this circuit, summary disposition of appeals is governed by Eighth Circuit Rule 9. Paragraph (a) of Rule 9, which relates to this court's power, on its own motion, to dispose of an appeal summarily, provides:

The court may at any time, on its own motion and without notice, dispose of an appeal summarily, except that notice must be given if the appeal is in forma pauperis, a certificate of probable cause has been issued, and briefs have not been filed. The court may dismiss an appeal that is not within the jurisdiction of the court or that it finds to be frivolous and entirely without merit, or may affirm or reverse when the questions presented do not require further argument.

Paragraph (b) of Rule 9 relates to summary disposition of appeals on motion of the parties. Prior to September 1, 1975, Rule 9(b) read in relevant part:

The appellee may file a motion for summary disposition of a docketed appeal. A motion to dismiss an appeal may be based on the contention that (1) the appeal is not within the jurisdiction of the court, or (2) the appeal is frivolous and entirely without merit. A motion to affirm may be based on the ground that the questions presented for review are so unsubstantial as not to need further argument. A motion for summary disposition may be on alternate grounds.

For reasons to be discussed below, the court amended Rule 9(b) effective September 1, 1975. The pertinent part of the rule now provides:

The appellee may file a motion for summary disposition of (a) docketed appeal. A motion to dismiss an appeal under this rule may be based Only on the contention that the appeal is not within the jurisdiction of the court. (Emphasis added.)

The effect of this amendment to Rule 9(b) is obvious motions to dismiss on the ground of frivolity will no longer be entertained by this court. Unfortunately, we have detected a tendency on the part of appellees to attempt to circumvent this rule by submitting "requests" or "suggestions" that this court exercise its power under Rule 9(a) to dismiss an appeal as frivolous. In order to alleviate any possible misunderstanding about the appropriate bases for motions to dismiss in this circuit, we deem it appropriate to discuss in some detail the purpose of amended Rule 9(b).

Valid and important purposes were served by allowing a party to move to dismiss an appeal as frivolous under former Rule 9(b) E. g., conserving judicial resources, expediting the processing of cases, and relieving appellees from the costly and time-consuming process of defending against patently frivolous appeals. Over a period of time, however, it became apparent that former Rule 9(b) was the...