715 F.2d 1311 (8th Cir. 1983), 83-1388, Harrison v. United States
|Citation:||715 F.2d 1311|
|Party Name:||Billy HARRISON, Administrator of the Estate of Elsie Marie Harrison, Appellant, v. UNITED STATES of America, Appellee.|
|Case Date:||September 01, 1983|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Submitted Aug. 25, 1983.
James Bruce McMath, Little Rock, Ark., for appellant.
W. Asa Hutchinson, U.S. Atty., Larry R. McCord, Asst. U.S. Atty., Fort Smith, Ark., for appellee.
Before HEANEY and BRIGHT, Circuit Judges, and HENLEY, Senior Circuit Judge.
This case involves eight consolidated personal injury and wrongful death actions brought by eleven plaintiffs under the Federal Tort Claims Act (FTCA). The district court, 521 F.Supp. 1273, held that plaintiffs' tort claims were barred by the discretionary function exception to the FTCA. This court reversed in part, holding that one of plaintiffs' theories of negligence was not barred by the discretionary function exception. It remanded the case to the district
court for a determination of whether plaintiffs' theory was cognizable under Arkansas law and whether plaintiffs could establish their claim. Madison v. United States, 679 F.2d 736 (8th Cir.1982).
The joint notice of appeal failed to specify as appellant Billy Harrison, Administrator of the estate of Elsie Marie Harrison, plaintiff in USDC No. 78-1006. This failure was not noticed by Billy Harrison, or by his attorney, until after remand by this court, when the workers' compensation carrier attempted to intervene in the proceedings. At that point, the district court clerk informed the parties that the Harrison case was closed. Harrison thereupon filed a motion to reopen the case and amend the notice of appeal to include his name. The district court denied the motion for lack of jurisdiction. Harrison now appeals.
We agree with the district court that it lacked jurisdiction to grant the relief requested. However, we recall our mandate to allow amendment to the notice of appeal.
FRAP 3(c) provides:
The notice of appeal shall specify the party or parties taking the appeal....
Several courts have held that a party not specifically named in the notice of appeal may not be deemed an appellant. The leading case is Van Hoose v. Eidson, 450 F.2d 746, 747 (6th Cir.1971), where the court held:
We are satisfied that the only appellant in this case is Floyd Van Hoose. Rule 3(c) ... requires in part: "The notice of appeal shall specify the party or parties taking the appeal." The only party specified in the notice of appeal filed in this case was Floyd Van Hoose. The term "et al" does not inform any other party or any court as to which of...
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