778 F.2d 1365 (9th Cir. 1985), 84-5947, Farley Transp. Co., Inc. v. Santa Fe Trail Transp. Co.
|Citation:||778 F.2d 1365|
|Party Name:||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.,|
|Case Date:||December 16, 1985|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted Sept. 6, 1985.
[Copyrighted Material Omitted]
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.
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.
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...
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