Arendt v. United Power Ass'n

Citation635 F.2d 755
Decision Date31 December 1980
Docket NumberNo. 80-1726,80-1726
PartiesPaul E. ARENDT v. UNITED POWER ASSOCIATION, a corporation; Cooperative Power Association, a corporation; and T.B. Robinson, A.M. Acheson, C.W. Keller, R.C. Oliver, J.H. Robinson, and R.D. Woodson, a partnership d/b/a Black & Veatch. UNITED POWER ASSOCIATION, a corporation and Cooperative Power Association, a corporation v. COMBUSTION ENGINEERING, INC., a corporation of Windsor, Connecticut, Appellee, and Wallace Power Company, a division of the Sam P. Wallace Company, Inc., of Atlanta, Georgia, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Gary R. Wolberg, Bismarck, N.D., for appellant.

Duane H. Ilvedson, Nilles, Hansen, Selbo, Magill & Davies, Ltd., Fargo, N.D., for appellee.

Before BRIGHT, ROSS and McMILLIAN, Circuit Judges.

ORDER OF DISMISSAL

This court, by order of November 12, 1980, directed the parties to show cause why this appeal should not be dismissed for lack of a final order or judgment as required by 28 U.S.C. § 1291. Having considered the response, we dismiss the appeal.

After Paul Arendt, an employee of Combustion Engineering, Inc., brought this suit for bodily injuries alleging negligent conduct by defendants United Power Association, Cooperative Power Association, and others, these defendants filed a third-party complaint for contribution or indemnity against Combustion Engineering and Wallace Power Company, two of the subcontractors on the project on which Arendt was injured. Wallace Power Company, in turn, cross-claimed against Combustion Engineering, alleging that

(t)he plaintiff's damages, if any, were caused and contributed to by Combustion Engineering, Inc., under circumstances that entitle Wallace Power Company to recover by way of contribution or indemnity, as the law allows, against Combustion Engineering, Inc., in the event that the third party plaintiffs obtain judgment against Wallace Power Company.

On a motion for summary judgment, the district court dismissed all claims for contribution against Combustion Engineering. Wallace Power Company appeals.

In its response to this court's show cause order, Wallace Power relies on the Cohen rule, as discussed in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), and Federal Trade Commission v. Texaco, Inc., 517 F.2d 137 (D.C. Cir. 1975), as establishing its right to appeal the merits of the district court's order. The Cohen rule makes appealable under 28 U.S.C. § 1291 certain orders that do not fully and finally determine the controversy between the parties. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); 9 Moore's Federal Practice P 110.10, at 133 (2d ed. 1980). Wallace Power asserts that because its only claim against Combustion Engineering was a claim for contribution and the order granting partial summary judgment has eliminated that claim, this court should afford the finality requirement of a practical rather than technical construction and decide the merits of the appeal.

Initially, we note that under the Cohen rule an order must bear three characteristics before it can qualify as a "final decision:"

(1) the order must be a final determination of a claim of right "separable from, and collateral to, rights asserted in the action;" (2) it must be "too important to be denied review," in the sense that it "presents a serious and...

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2 cases
  • Acton v. City of Columbia, Mo.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 8 Febrero 2006
    ...Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); see also Arendt v. United Power Ass'n, 635 F.2d 755, 756 (8th Cir.1980). To this end, we have no doubt that, had the City filed a cross-motion for summary judgment on the meal allowance and willfu......
  • Washington v. Starke
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 4 Abril 1986
    ...to the district court for a new trial. Hence, the district court's order is not appealable under Cohen. See Arendt v. United Power Ass'n, 635 F.2d 755, 756-57 (8th Cir. 1980). Accordingly, it is ORDERED that the motion to dismiss is ...

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