Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co.

Decision Date26 February 1981
Docket NumberP-171,Nos. 79-1804,79-1805,AMALGAMATED,s. 79-1804
Parties107 L.R.R.M. (BNA) 2053, 90 Lab.Cas. P 12,620 LOCALMEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, Plaintiff, v. THOMPSON FARMS COMPANY, Defendant-Appellee. Fritz PLANK et al., Plaintiffs-Appellants, v. THOMPSON FARMS COMPANY, A Corporation, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Carl Klein, Oak Lawn, Ill., for plaintiff.

Elizabeth H. Sediman, Chicago, Ill., for defendant-appellee.

Before SWYGERT, Circuit Judge, WISDOM, Senior Circuit Judge, * and PELL, Circuit Judge.

WISDOM, Senior Circuit Judge.

The only substantive issue in this case involves the proper interpretation and application of certain provisions of a collective bargaining agreement. We find ourselves in agreement with the district court's interpretation of that agreement. We hold, however, that the order entered was inconsistent with that interpretation. We therefore vacate in part and remand.

I.

The most difficult issues in this case, however, were not raised or briefed by any party. Because they concern our jurisdiction, we must consider them on our own motion.

This action is a consolidation of two lawsuits. Both arose from the permanent shutdown of two meat packing enterprises, Thompson Farms and Reliable Packing, on August 31, 1975. The first action was filed against Thompson Farms by one of its collective bargaining opponents, Local P-171 of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. The second action was brought by seventy-odd individual ex-employees of Thompson Farms and Reliable, some of whom were also members of the union, against those two firms, individual officers of those corporations, and several financial institutions in the position of stakeholders. The latter complaint was in four counts. Counts I and II asserted irregularities in the management of and distribution of proceeds from profit-sharing and pension trusts created for the employees' benefit, and sought an accounting and restitution. Count III claimed that the employees were entitled to vacation pay for the year 1975 under the collective bargaining agreement in force at the time the firms ceased operations. In Count IV, four of the individual plaintiffs claimed extra pay for hours previously worked under an oral promise allegedly made to them by Thompson. The union's complaint, brought on behalf of its members, essentially duplicated the substance of the first three counts of the individual employees' complaint, with the added claim that the employees were entitled to holiday pay for the year of the shutdown. Federal jurisdiction was invoked under 28 U.S.C. § 1337, 29 U.S.C. §§ 185(a), 1132, and pendent jurisdiction.

As of the time this appeal was taken these claims had not proceeded to trial. After lengthy pretrial skirmishing, the claims of impropriety relating to the profit-sharing trust were dismissed by stipulation. The claims relating to vacation pay, the subject of this appeal, were adjudicated by the district court upon cross-motions for summary judgment submitted by all the parties. According to the district court's construction of the collective bargaining agreement, some but not all of the employees were entitled to vacation pay for 1975. As there was never any dispute over the amount of vacation pay each employee was entitled to once liability was established, the district court orally ordered upon motion that those entitled to it be paid immediately. Although judgment was never formally entered against it, Thompson Farms complied without objection. 1 So far as the record shows, all of the other claims are still being adjudicated in the district court.

In general, "any order ... which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties...." Fed.R.Civ.P. 54(b). The district court's order granting summary judgment on the vacation pay claim therefore would not constitute an appealable "final decision" under 28 U.S.C. § 1291 unless the district court specifically made "an express determination that there is no just reason for delay" and an "express direction for the entry of judgment" under Rule 54(b). 2 Such was not the case here. The court never directed the entry of judgment; judgment was not in fact entered on the docket by the clerk; and no "separate document" meeting the Rule 58 specifications for an effective judgment appears in the record. Nonetheless, those individual employees not entitled to vacation pay under the district court's construction of the contract filed a notice of appeal from the summary judgment and related orders on July 3, 1979. The union did not join the appeal.

On September 19, 1979, well after the notice of appeal had been filed, appellants obtained from the district court a nunc pro tunc amendment to the orders appealed from in a belated attempt to ensure their appealability. Unfortunately, appellants chose the wrong magic words to set before the district judge. Assuming that nunc pro tunc amendment could be effective after the filing of the notice of appeal, the correct method of ensuring appealability would have been to employ the Rule 54(b) certification procedure, which would have rendered the orders appealable of right under 28 U.S.C. § 1291. Instead, the amendment signed by the district judge purported to certify the orders for permissive interlocutory appeal under 28 U.S.C. § 1292(b). 3 Rather than directing entry of judgment and finding "no just reason for delay", therefore, the amendment stated that the district judge was "of the opinion that this order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from this order as authorized by 28 U.S.C. § 1292(b) may materially advance the ultimate termination of the litigation". Yet the parties proceeded as if that amendment was the equivalent of Rule 54(b) certification. Federal Rule of Appellate Procedure 5 and § 1292(b) itself both require a petition for permission to appeal to be filed with the court of appeals within ten days of district court certification whenever a litigant requests the court of appeals to allow an interlocutory appeal under § 1292(b). Instead of doing so, appellants merely relied on their original notice of appeal. All the briefs submitted on appeal assumed that this is an appeal of right.

The filing of a proper petition for permission to appeal within ten days is a jurisdictional prerequisite for invocation of 28 U.S.C. § 1292(b). See Fed.R.App.P. 26(b); Atkins v. Scott, 597 F.2d 872, 879 (4 Cir. 1979); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3929, at 140-42 (1977). We need not, therefore, consider whether the orders certified here would be within our power to review under § 1292(b), if the procedures of Appellate Rule 5 had been followed. 4 Nevertheless, we conclude that in the circumstances of this case, we have jurisdiction over an appeal from a "final decision" under 28 U.S.C. § 1291. In reaching this result, we hold that in this case the district court's certification of these orders under 28 U.S.C. § 1292(b) is to be treated as equivalent to certification under Federal Rule 54(b); that the orders so certified are appropriate subjects of Rule 54(b) certification; and that the district court's amendment nunc pro tunc adding the certification language was effective even though entered after the filing of the notice of appeal.

A.

There is no doubt that if the district court had followed the Rule 54(b) certification procedures before the notice of appeal was filed, the orders appealed from would be properly before us. Although Rule 54(b) certification is to a large extent discretionary with the district court, the "final judgment" requirement of 28 U.S.C. § 1291 and Rule 54 itself together permit orders to be certified thereunder only if they meet two minimal, nondiscretionary criteria. First, the district court action as a whole must encompass multiple parties or multiple claims for relief, rather than a single claim resting on multiple theories or a single claim with alternative requests for relief. Second, the order certified must decide finally and completely at least one of those discrete claims. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 899, 100 L.Ed. 1297 (1956); Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944, 947 (7 Cir. 1980); Brunswick Corp. v. Sheridan, 582 F.2d 175, 182-83 (2 Cir. 1978).

An order is determined to be "final" in this context by reference to the normal standards of § 1291: if the claim had been brought as a separate litigation, only an order "which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment" is final Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956); Acha v. Beame, 570 F.2d 57, 62 (2 Cir. 1978). Although the parties here loosely referred to their cross-motions on the vacation pay claim as motions for "partial" summary judgment, that characterization is not controlling. Unlike the "partial" summary judgment defined by Rule 56(b), which permits summary judgment on single issues, or the "interlocutory" summary judgment of Rule 56(c), which permits summary judgment on liability while reserving the issue of damages, the district court's decision here completely decided the parties' rights and liabilities with respect to vacation pay, and is therefore final. See, e. g., In re Yarn Processing Patent Validity Litigation, 541 F.2d 1127, 1143 (5 Cir. 1976), cert. denied, 433 U.S. 910, 97 S.Ct. 2976, 53 L.Ed.2d 1094 (1977). Cf. Liberty Mutual Insurance Co. v. Wetzel, 424 U.S....

To continue reading

Request your trial
105 cases
  • Baldwin County Welcome Center v. Brown
    • United States
    • U.S. Supreme Court
    • 16 de abril de 1984
    ...455 U.S. 993, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982); Aparicio v. Swan Lake, 643 F.2d 1109, 1111 (CA5 1981); Local P-171 v. Thompson Farms Co., 642 F.2d 1065, 1068 (CA7 1981); Atkins v. Scott, 597 F.2d 872, 879 (CA4 1979); Braden v. University of Pittsburgh, 552 F.2d 948, 950-951 (CA3 1977) ......
  • Stearns v. Consolidated Management, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 28 de setembro de 1984
    ...Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., 642 F.2d 1065, 1069 (7th Cir.1981). Defendant's principal contention is that plaintiff's ADEA claim is not separate f......
  • Gillis v. U.S. Dept. of Health and Human Services
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 19 de abril de 1985
    ...accord Davis v. Ball Memorial Hospital, 640 F.2d 30, 35 (7th Cir.1980); 2 see generally Local P-171, Amalgamated Meat Cutters of N.A. v. Thompson Farms Co., 642 F.2d 1065, 1067-71 (7th Cir.1981) (discussion of when interlocutory order has disposed of separate claim for relief for purposes o......
  • Indiana Harbor Belt R. Co. v. American Cyanamid Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 7 de novembro de 1988
    ...cover a partial adjudication of a single claim, even if other claims are presented in the case. Local P-171, Amalgamated Meat Cutters v. Thompson Farms Co., 642 F.2d 1065, 1069 (7th Cir.1981); Rieser v. Baltimore and Ohio Railroad Co., 224 F.2d 198 (2nd Cir.1955); 6 Moore's Federal Practice......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT