Metallurgical Industries, Inc. v. Fourtek, Inc., 84-1773
| Decision Date | 23 September 1985 |
| Docket Number | No. 84-1773,84-1773 |
| Citation | 771 F.2d 915 |
| Parties | METALLURGICAL INDUSTRIES, INC., Plaintiff-Appellant, v. FOURTEK, INC., a Corporation, et al., Defendants, and Irvin Bielefeldt, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hubbard, Thurman, Turner & Tucker, John Feather, Dallas, Tex., Carella, Byrne, Bain & Gilfillan, John N. Bain, Richard E. Kummer, Roseland, N.J., Geary, Stahl & Spencer, Gerald P. Urbach, Dallas, Tex., for plaintiff-appellant.
Christie, Parker & Hale, Richard D. Seibel, E. Roderick Cline, Pasadena, Cal., Richards, Harris & Medlock, V. Bryan Medlock, Jr., Martin Korn, Dallas, Tex., for Smith Intern.
Crutsinger & Booth, John Booth, Monty L. Ross, Stinson, Mag & Fizzell, William Frank Carroll, Dallas, Tex., for Bielefeldt.
Vernon, McKinley & Lybrand, James L. Schutza, Dallas, Tex., for Montesino, Boehm & Sarvadi.
Appeal from the United States District Court for the Northern District of Texas.
Before REAVLEY, POLITZ and TATE, Circuit Judges.
When an appellant notices appeal from an interlocutory order and subsequently obtains a certificate pursuant to Fed.R.Civ.P 54(b) for appeal of the prior order, must a new notice of appeal be filed after entry of the Rule 54(b) order? Our answer: a new notice is not prerequisite to our jurisdiction.
On May 7, 1985, 762 F.2d 1002, this panel dismissed the appeal of Metallurgical Industries, Inc. on the grounds that the order from which the appeal was taken did not dispose of the claim against one of the defendants. We suggested that appellant accept appellees' offer of a joint motion to the district court to certify finality pursuant to Rule 54(b); and we advised that, if the Rule 54(b) certificate were obtained, the appeal so supplemented could proceed. See General Motors Corp. v. Dade Bonded Warehouse, Inc., 498 F.2d 327, 328 (5th Cir.1974).
The district court did on June 6 make the proper Rule 54(b) certificate by an order that granted no relief except to certify the finality of the June 28, 1984 order from which the attempted appeal originally was taken. Metallurgical Industries, Inc. filed the certificate and moved to reinstate the appeal. Appellees now oppose the exercise of our jurisdiction on the ground that the June 6 order is the first final order of the district court, that no notice of appeal has been given to comply with Fed.R.App.P. 4(a)(1), and that no appeal has therefore been taken. If that were the result here, it would be a real victory of form over substance. The parties and judges alike knew that the appeal would proceed upon entry of the district court's 54(b) certificate.
Fortunately, we have the holding of Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160 (1984) to...
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...jurisdiction to proceed with this appeal based on the district court's Rule 54(b) certification. Cf. Metallurgical Indus., Inc. v. Fourtek, Inc. , 771 F.2d 915, 916 (5th Cir. 1985). Rule 54(b), rather than § 1292(a)(3), is the proper route to appellate jurisdiction over appeals of interlocu......
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...apart from Rule 4(a)(4), there is no general rule that "premature" notices of appeal are invalid. See Metallurgical Industries, Inc. v. Fourtek, Inc., 771 F.2d 915, 916 (5th Cir.1985); Alcorn County, Mississippi v. U.S. Interstate Supplies, 731 F.2d 1160, 1164-66 (5th The July 2 motion, so ......