Kushner v. Winterthur Swiss Ins. Co.

• Decision Date: 22 April 1980
• Docket Number: No. 79-2383,79-2383
• Parties: KUSHNER, Marvin and Kushner, Dolores, husband and wife, Appellants, v. WINTERTHUR SWISS INSURANCE COMPANY, Emhart A.G. and Emhart Corporation and Hill Refrigeration Division of Emhart Industries. . Submitted under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 404

620 F.2d 404

55 A.L.R.Fed. 513

KUSHNER, Marvin and Kushner, Dolores, husband and wife, Appellants, v. WINTERTHUR SWISS INSURANCE COMPANY, Emhart A.G. and Emhart

Corporation and Hill Refrigeration Division of

Emhart Industries.

No. 79-2383.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit Rule 12(6) April 22, 1980.

Decided April 30, 1980.

Robert P. Weiner, Zarwin, Baum, Arangio & Ross, Philadelphia, Pa., for appellants.

Bruce D. Lombardo, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for Winterthur Swiss Ins. Co. and Emhart A.G.

Austin Hogan, Krusen, Evans & Byrne, Philadelphia, Pa., for Emhart Corp. and Hill Refrig. Div., etc.

Before ALDISERT, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The Federal Rules of Appellate Procedure and the rules of this court set forth certain requirements to be observed by litigants pressing appeals in this court. This appeal requires us to decide what sanctions should be imposed, first, under our Rule 21 ¹ when the requirements for briefs and appendices have not been observed, and second, under Rule 54(b), Federal Rules of Civil Procedure, when the order from which an appeal is taken indicates that it "adjudicates . . . the rights and liabilities of fewer than all the parties," but appellants have represented that the appeal is from a final judgment "in accordance with 28 U.S.C. 1291 (sic)."

Appellants filed a complaint sounding in diversity in the district court, seeking compensation for personal injuries suffered in an automobile collision that occurred in Zurich, Switzerland on August 2, 1977. Named as defendants were Emhart A.G., a Swiss corporation, and Hill Refrigeration Division of Emhart Industries, a New Jersey corporation, both wholly owned subsidiaries of Emhart Corporation, a Connecticut company that was also named as a defendant. The fourth defendant named was Winterthur Swiss Insurance Company, a New York corporation doing business in Switzerland and the liability insurance carrier for Emhart A.G.

All defendants filed motions to dismiss pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. The motion of defendant Emhart A.G. was based upon lack of personal jurisdiction. Winterthur also moved to dismiss for lack of personal jurisdiction, and additionally on the basis that no direct action could be sustained against Winterthur Swiss Insurance Company under Pennsylvania or Swiss law. On August 16, 1979, the district court granted the motions of Emhart A.G., Emhart Corporation, and Winterthur. The court denied the motion to dismiss presented by Hill Refrigeration and ordered it to file an answer. On September 6, 1979, the remaining defendant, Hill Refrigeration, filed interrogatories, a notice of deposition, and its answer to the complaint. On September 17, 1979, notice of appeal was received and filed in the district court, and on September 19, 1979, a copy of the notice of appeal was received by this court.

I.

The rules of this court, supplementing the Federal Rules of Appellate Procedure, have been effective in their present form since September 1, 1978. Third Circuit Rule 21(2)(A)(g) and Rule 32(a), Federal Rules of Appellate Procedure, provide in relevant part:

The front covers . . . of the briefs and of appendices, if separately printed, shall contain: . . . (5) the names and addresses of counsel representing the party on whose behalf the document is filed.

On December 21, 1979, a document was filed with the Clerk entitled: "BRIEF FOR PLAINTIFFS-APPELLANTS, MARVIN AND DOLORES KUSHNER APPENDIX." Contrary to the requirements of this rule, the names and addresses of counsel were not set forth on the cover; indeed, this information appears nowhere in the document.

Third Circuit Rule 10(3) provides:

Contents of Appendix. As required by Rule 30(a), Federal Rules of Appellate Procedure, the appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, or findings; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. In addition, the appendix shall contain: (5) a table of contents with page references; (6) the notice of appeal and (7) the memorandum or opinion of any trial court subject to review. If the court by order has dispensed with the requirement of an appendix, items (1), (3), (6) and (7) shall be included in appellant's brief. See also Rule 21(2)(A)(a).

Contrary to the requirements of Rule 10(3)(1) and Fed.R.App.P. 30(a)(1), the appendix does not contain the relevant docket entries in the proceedings below. Contrary to the requirement of Rule 10(3)(5), the appendix is not paginated; instead, it takes the form of a collection of exhibits with each segment bearing an introductory letter of the alphabet. And contrary to the requirement of Rule 10(3)(6), the appendix does not contain the notice of appeal.

The Federal Rules of Appellate Procedure govern the processing of appeals, and are the product of much careful thought by the Advisory Committee on Appellate Rules, the Committee on Rules of Practice and Procedure, the Supreme Court, and the Congress. They set forth the requirements a litigant must observe if the merits of the appeal are to be considered properly by the United States Courts of Appeals. They have the force and effect of statutes. See 28 U.S.C. §§ 2071-72.

The Third Circuit Rules have been designed to meet the particular needs of this court, which has jurisdiction over three states and one territory with a population of approximately eighteen million people. Our rules relating to the contents of briefs and appendices were drafted after much deliberation by the judges and after consideration by this court's Lawyers Advisory Committee. They were drafted with a view toward assisting the processing of the geometric increase of cases in this court in the past couple of decades. For example, in 1960, when there were seven Third Circuit Judges, 296 appeals and original proceedings were filed in this court. By 1969, one judge had been added and the number of filings had risen to 671; ten years later, with only nine judges, the number of filings had reached 1,702. ²

Expressed in terms of the caseload per judge, in 1968 each active judge on this court was assigned 90 fully briefed appeals and original proceedings for disposition on the merits. This year each active judge has been assigned 275 fully briefed cases on the merits. ³ This does not include consideration of an increasingly burdensome volume of motions and petitions for rehearing. If the court is not supplied with the proper tools to decide cases, then extremely valuable time, already severely rationed, must be diverted from substantive work into correspondence and communications with the Clerk and counsel to obtain the vital information negligently or deliberately omitted from the appendix.

For example, the appendix offered by counsel in this case contains no notice of appeal. Yet the threshold question in every appeal is the jurisdiction of this court, which includes both federal court subject matter jurisdiction as well as appealability. In every case, the court examines the notice of appeal, the order appealed from, and the district court docket entries to determine whether the appeal is from a judgment in accordance with 28 U.S.C. § 1291, or lies within a specific exception for interlocutory decision provided in 28 U.S.C. § 1292. If the appeal is from an action involving multiple claims or multiple parties, as here, the court must determine whether the judgment appealed from was final as to all claims and parties, or whether the district court has made a proper express determination that there is no just reason for delay and an express direction for the entry of judgment under Rule 54(b), Federal Rules of Civil Procedure. Because appellants here failed to provide the court with a list of docket entries or a notice of appeal, much valuable time had to be expended by three judges and personnel of the Clerk's office repairing an incomplete brief and appendix, when this time would have been better spent in considering the merits of cases that are presented to us in proper form.

The failure of some members of the bar to observe the basic requirements for briefs and appendices has long troubled this court, although we have been loathe to impose sanctions. For example, in United States v. Somers, 552 F.2d 108, 115 (3d Cir. 1977), we said:

Heretofore we have hesitated to suppress appellate papers or to dismiss appeals for failure to comply with appellate rules. However, presentations such as the instant one go a long way toward dispelling that hesitation. We can no longer afford the effort and time to prepare counsels' case and to supply counsels' record deficiencies. Henceforth, our displeasure with counsels' refusal, failure or unwillingness to master our procedures will necessarily result in the imposition of appropriate sanctions. Third Cir.R. 21(3).

We now decide not to expend any more valuable judicial time performing the work of errant counsel, a practice that worked a tremendous disservice to the bulk of the litigants who appear before us represented by diligent counsel who do observe our rules. We are deciding this case deliberately, with an awareness of the institutional and precedential value of our decision. We dismiss this appeal for failure to file an appendix that conforms to our rules, in accordance with the authority set forth in Rule 21(3), quoted in note 1, supra. Cases similar to this in which counsel fail to observe the Federal Rules of Appellate Procedure and the rules of this court may also result in dismissal of appeals.

We have...