Farley Transp. Co., Inc. v. Santa Fe Trail Transp. Co., 84-5947

• Citation: 778 F.2d 1365
• Decision Date: 16 December 1985
• Docket Number: No. 84-5947,84-5947
• Parties: FARLEY TRANSPORTATION CO., INC., Farley Terminal Co., Inc., Piggyback Trailermate, Inc., Systems Terminal, Inc., Plaintiffs, v. The SANTA FE TRAIL TRANSPORTATION COMPANY, et al., Defendants. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant/Counter-Claimant/Appellee, v. FARLEY TRANSPORTATION CO., INC., Farley Terminal Co., Inc., Plaintiff/Counter- Defendant/Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1365

778 F.2d 1365

4 Fed.R.Serv.3d 32

FARLEY TRANSPORTATION CO., INC., Farley Terminal Co., Inc., Piggyback Trailermate, Inc., Systems Terminal, Inc., Plaintiffs, v. The SANTA FE TRAIL TRANSPORTATION COMPANY, et al., Defendants.

The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant/Counter-Claimant/Appellee, v. FARLEY TRANSPORTATION CO., INC., Farley Terminal Co., Inc.,

Plaintiff/Counter- Defendant/Appellant.

No. 84-5947.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 6, 1985.

Decided Dec. 16, 1985.

Maxwell M. Blecher, Blecher, Collins & Weinstein, Los Angeles, Cal., for plaintiff/counter-defendant/appellant.

Thomas I. McKnew, Jr., Benson C. Marshall, Los Angeles, Cal., Joseph H. Cummins, Barry Van Sickle, Los Angeles, Cal., for defendant/counter-claimant/appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, CANBY, and BEEZER, Circuit Judges.

WALLACE, Circuit Judge:

Farley Transportation Company, Inc. (Farley) appeals from a judgment entered in favor of the Atchison, Topeka & Santa Fe Railway Company (Santa Fe) on a motion for summary judgment to enforce a tariff provision. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I

In October 1979, Farley and other related Farley companies filed an action (the antitrust action) against Santa Fe and a number of other companies alleging violations of the antitrust laws and the Interstate Commerce Act. Santa Fe counterclaimed for breach of contract, alleging that Farley owed unpaid freight and detention charges. After a pretrial conference, Santa Fe's counterclaim was amended to include Class 70 tariff charges under Trans-Continental Freight Bureau Tariff 2-P, Item 4900, Note 7.

In December 1979, two months after Farley filed the antitrust action, a tariff inspector from the Trans-Continental Freight Bureau (the Bureau) attempted to verify freight records of shipments on the Santa Fe, Union Pacific, and Southern Pacific railroads. The Bureau acts as an agent for Santa Fe and other railroads pursuant to tariffs approved by the Interstate Commerce Commission (the Commission). The Bureau is authorized to audit shippers' records of shipments on common carriers to ensure that shippers have correctly described the commodity and weight of items shipped and applied the proper tariff. If a carrier or its authorized agent is denied access to verifying records, then a Class 70 rate tariff is imposed. The Class 70 rate is equal to ten times the shipping charge for each bill of lading withheld from inspection by a shipper or shipper's agent. The Class 70 tariff is designed to discourage unlawful shipping practices and to compel disclosure of freight charge documentation.

At the time of the Bureau's initial request, Farley permitted inspection of records pertaining to Union Pacific and Southern Pacific railroads, but on the advice of counsel and in light of the antitrust action denied the request to audit records of shipments on Santa Fe. The Bureau requested access to Farley's Santa Fe records on a periodic basis through September 1981, but its requests were consistently denied.

Thereafter, pursuant to discovery motions in the antitrust action, Farley turned over to Santa Fe the records that the Bureau had attempted to audit. More than a year later, counsel for Farley notified the Bureau that Farley would permit an audit of Santa Fe records to verify compliance with tariff provisions. A few days thereafter, Farley filed a motion for summary judgment on Santa Fe's Class 70 tariff counterclaim. The district judge denied the motion and, after setting forth his analysis of the issues, invited Santa Fe to move for summary judgment. Santa Fe did so, and the district court entered judgment in the amount of $454,707.63 for Class 70 tariff charges against Farley and Farley Terminal Company, Inc. (Farley Terminal), one of the related Farley companies involved in the antitrust action. Farley timely appealed.

II

Santa Fe contends that we have no jurisdiction to hear the appeal of Farley's related company, Farley Terminal, because it was not named in the notice. The notice of appeal from the district court's grant of partial summary judgment lists only "Farley Transportation Co., Inc." as appellant. Rule 3(c), Fed.R.App.P., states in part that "[t]he notice of appeal shall specify the party or parties taking the appeal." We, therefore, must determine whether Farley Terminal is a party to this appeal.

Filing a notice of appeal within the 30-day period specified in rules 3(a) and 4(a), Fed.R.App.P., is mandatory and jurisdictional. Absent compliance, the appeal must be disissed. See Rodgers v. Watt, 722 F.2d 456, 457-58 (9th Cir.1983) (en banc); Wallace v. Chappell, 637 F.2d 1345, 1346 (9th Cir.1981) (en banc) (per curiam). For example, in Cook & Sons Equipment, Inc. v. Killen, 277 F.2d 607 (9th Cir.1960) (Cook ), a judgment had been entered against two individuals and a corporation in the district court, but only the corporation was named as an appellant in the notice of appeal. We rejected the individuals' claim that a clerical error caused their names to be omitted, and disallowed amendment of the notice.

The omission here was much more than a clerical error. It was a failure of the individual defendants to appeal. We have no authority to amend the notice of appeal so as to bring in additional parties.... Rule 73(b) [, Fed.R.Civ.P., the predecessor to rule 3(c), Fed.R.App.P.] requires that the notice of appeal specify the parties taking the appeal. Only the parties named in the notice of appeal are brought within the appellate court's jurisdiction.... The harmless error doctrine has no application to failure to name parties in a notice of appeal.

Id. at 609. Santa Fe contends that Cook is controlling and that the omission of Farley Terminal is more than a mere clerical error. During oral argument, Farley admitted that if Cook is applied, Farley Terminal is not a party to this appeal. Farley argues, however, that Cook is not dispositive of this issue because: (1) it precedes the Federal Rules of Appellate Procedure; (2) it conflicts with the Supreme Court's ruling in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (Foman ); and (3) it conflicts with Supreme Court Rule of Practice 10.4, which Farley contends we have adopted. We will discuss each argument in turn.

That Cook was decided prior to adoption of the Federal Rules of Appellate Procedure does not prevent it from being dispositive of this question. The predecessor rule 73(b) of the Federal Rules of Civil Procedure, which Cook interpreted as requiring the notice to specify each of the parties taking an appeal, is in all relevant respects identical to language in rule 3(c) of the Federal Rules of Appellate Procedure.

We also do not believe that the Supreme Court's decision in Foman has altered the law in this circuit as suggested by Farley. In Foman, the Supreme Court held that it is "contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of" technical violations of the rules. 371 U.S. at 181, 83 S.Ct. at 229. This does not mean that failure to comply with the rules is of no consequence merely because it does not mislead or prejudice the other party. Adopting a purely "equitable" approach to applying the rules would result in unpredictability and defeat the purpose of the rules, which is to promote the orderly resolution of disputes and to discourage dilatory practices. See McCormack v. Schindler (In re Orbitec Corp.), 520 F.2d 358, 362 (2d Cir.1975). Furthermore, in multiparty litigation it is important that the notice specify which of the parties is taking an appeal. See Samuel v. University of Pittsburgh, 506 F.2d 355, 356-57 n. 1 (3d Cir.1974); see also 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Sec. 3949, at 356 (1977) ("where there are multiple aggrieved parties, only those who join in the notice of appeal will be deemed to have taken an appeal"). A literal interpretation of rule 3(c) creates a bright-line distinction and avoids the need to determine which parties are actually before the court long after the notice of appeal has been filed.

Nor do we conclude that Foman overruled Cook. In our recent decision of Southwestern Media, Inc. v. Rau, 708 F.2d 419 (9th Cir.1983) (Southwestern ), we implicitly affirmed the continuing vitality of Cook, and stated that Cook applies "where a party is being added." Id. at 422 n. 2. That is precisely what is being attempted at this late date--the addition of Farley Terminal as a party to the appeal.

Our interpretation of rule 3(c) is supported by Van Hoose v. Eidson, 450 F.2d 746 (6th Cir.1971) (Van Hoose ), a post-Foman decision by the Sixth Circuit. In Van Hoose, four students had requested a district court to declare a hair code unconstitutional and to grant injunctive and other relief. The district court denied the request, and a notice of appeal was filed by "Van Hoose, et al." The defendant moved to dismiss the appeal, alleging that Van Hoose's claim was moot and that the other students had not taken an appeal. Relying on Cook, the Sixth Circuit granted the dismissal as to the unnamed students after concluding that "[t]he term 'et al' does not inform any other party or any court as to which of the plaintiffs desire to appeal in this case. This is more than a clerical error." Id. at 747; see also Covington v. Allsbrook, 636 F.2d 63, 64 (4th Cir.1980) (extending Van Hoose to require "actual signing by pro se parties desiring to join in an appeal"), cert. denied, 451 U.S. 914, 101 S.Ct. 1990, 68 L.Ed.2d 305 (1981).

Finally, Farley contends that Cook is not dispositive because we should apply rule 10.4 of the Rules of the Supreme Court in this case. Rule 5 of the Rules of the United States Court of Appeals for the Ninth Circuit...