850 F.2d 641 (10th Cir. 1988), 87-1110, Lewis v. B.F. Goodrich Co.

Docket Nº:87-1110.
Citation:850 F.2d 641
Party Name:Robert LEWIS, Plaintiff-Appellant, v. B.F. GOODRICH COMPANY; Daniel Newsome; Roy Ailstock, Defendants-Appellees.
Case Date:July 05, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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850 F.2d 641 (10th Cir. 1988)

Robert LEWIS, Plaintiff-Appellant,

v.

B.F. GOODRICH COMPANY; Daniel Newsome; Roy Ailstock,

Defendants-Appellees.

No. 87-1110.

United States Court of Appeals, Tenth Circuit

July 5, 1988

Page 642

        Jim Brent Smalling, Chickasha, Okl., for plaintiff-appellant.

        C. William Threlkeld of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for defendants-appellees.

        Before HOLLOWAY, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK and BRORBY, Circuit Judges.

        LOGAN, Circuit Judge.

        In this diversity action plaintiff Robert Lewis sued defendants B.F. Goodrich Company, Daniel Newsome, and Roy Ailstock for slander in federal district court. The district court granted summary judgment in favor of the defendants by its order of December 18, 1986, and plaintiff filed a notice of appeal on January 16, 1987, challenging this judgment. The issue before this en banc court is whether we have jurisdiction over the appeal. In deciding this issue, we reassess our holding in A.O. Smith Corp. v. Sims Consolidated, Ltd., 647 F.2d 118, 120-21 (10th Cir.1981). 1

        The grant of summary judgment here was not an appealable final order because a counterclaim by B.F. Goodrich against Lewis remained unadjudicated when the district court entered summary judgment. Responding to a motion which B.F. Goodrich had filed after the grant of summary judgment in the underlying cause, the district court entered an order in late December staying proceedings on the counterclaim. The order was labeled an "administrative closing order" and stated:

        "The Defendant B.F. Goodrich having requested the Court to stay its Counterclaim in this cause of action, it is hereby ordered that the Clerk administratively terminate this action in his records, without prejudice to the rights of the Defendant B.F. Goodrich to reopen the proceedings for good cause shown for the entry of any stipulation or order, or for any other purpose required to obtain a final determination of the litigation.

        IF, within 60 days from the date herein [December 29, 1986], the Defendant B.F. Goodrich has not reopened the proceedings for the purpose of obtaining a final determination herein, this action shall be deemed dismissed with prejudice."

        Administrative Closing Order, Case No. CIV-86-1227-BT (W.D.Okla. December 29, 1986). B.F. Goodrich did not move to reopen the proceedings on its counterclaim within the sixty-day time period; thus the

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closing order by its own terms matured into a dismissal of the counterclaim with prejudice on February 27, 1987, creating an appealable final judgment for the entire case. 2

        The fly in the ointment is that Lewis did not file a timely notice of appeal after the administrative closing order terminated the entire litigation. Then, after receiving notice that we were considering dismissing the appeal, Lewis and defendants applied to the district court for certification of the December 18 order as final under Fed.R.Civ.P. 54(b). The district court granted the request on May 13, 1987, but again no one filed a notice of appeal after that certification.

        If we follow the reasoning of A.O. Smith Corp., 647 F.2d at 120-21, and other cases we have decided similarly, see, e.g., Lamp v. Andrus, 657 F.2d 1167 (10th Cir.1981); Golden Villa Spa, Inc. v. Health Industries, Inc., 549 F.2d 1363 (10th Cir.1977), Lewis' premature notice of appeal was not cured by the later final judgment. Further, even if the Rule 54(b) certification, acquired after the district court judgment became final, was effective to resurrect the right to appeal the December 18 order, the failure to file a new notice of appeal thereafter would be fatal under A.O. Smith to any claim that the certification saved the appeal.

        A.O. Smith stated that this court would dismiss appeals from interlocutory orders when the district court had not given Rule 54(b) certification before the notice of appeal was filed, even if the district court granted such certification subsequently and before this court entered a dismissal order. This rule was designed to benefit the appellate court, which no longer would have to hold the case in administrative limbo while the appellant either returned to the district court to seek a Rule 54(b) certification or awaited the termination of the entire case.

        In A.O. Smith, the premature appeal was filed while the case was ongoing in the district court. Thus, this court thought that the appellant could either await the end of the entire litigation in district court and then file a notice of appeal, or seek and obtain Rule 54(b) certification after which it could file a new notice of appeal. We thus formulated the rule in A.O. Smith in anticipation that the rule would seldom result in a loss of appellate review for a disappointed litigant: "This is not a situation in which a procedural technicality forever forecloses the appellant from having an appellate court consider the merits of the case." Id. at 121.

        Apparently all of the other circuits that have considered this matter, however, have accepted jurisdiction in analogous circumstances, notwithstanding a premature filing of a notice of appeal. These circuits hold pre-Rule 54(b) appeals in abeyance while the parties obtain certification after the court's reminder of the omission, treating the 54(b) certification as relating nunc pro tunc to the date of the notice of appeal or treating the notice of appeal as ripening as of the date of the 54(b) certification. See Tidler v. Eli Lilly & Co., 824 F.2d 84, 85-87 (D.C.Cir.1987) (per curiam); Coalition for Equitable Minority Participation in Architectural Contracts in Tennessee (COMPACT) v. Metropolitan Government of Nashville and Davidson County, 786

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F.2d 227, 228 & n. 1 (6th Cir.1986); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 760 F.2d 177, 180-81 (7th Cir.1985); Metallurgical Industries, Inc. v. Fourtek, Inc., 771 F.2d 915, 916 (5th Cir.1985) (per curiam); Freeman v. Hittle, 747 F.2d 1299, 1301-02 (9th Cir.1984); Hayden v. McDonald, 719 F.2d 266, 268 (8th Cir.1983) (per curiam) (taking jurisdiction of appeal before determining that Rule 54(b) certification had been improvidently granted); Tilden Financial Corp. v. Palo Tire Service, Inc., 596 F.2d 604, 606-07 (3d Cir.1979). But cf. Oak Construction Co. v. Huron Cement Co., 475 F.2d 1220, 1221 (6th Cir.1973) (per curiam) (no 54(b) certification was entered before appellate court's decision; "[t]his lack of jurisdiction cannot be cured now by a belated Rule 54(b) certification").

        The circuits that take a more forgiving attitude toward premature notices of appeal state varying reasons to reject our A.O. Smith approach. The Ninth Circuit, in Freeman v. Hittle, 747 F.2d 1299 (9th Cir.1984), takes direct issue with A.O. Smith's assertion that dismissing premature notices of appeal would prevent administrative complications:

"The concern of the Tenth Circuit was that allowing appeals where the appellant had not secured a 54(b) certification would lead to a large number of cases being held in a pending category and to confusion and delay. [A.O. Smith, 647 F.2d] at 121. We respectfully disagree. The procedure would not be unduly complicated. If a 54(b) certification had been entered since the notice of appeal, as here, the case would be properly before the reviewing court; if 54(b) certification had not been entered, the appeal would be dismissed as a nonfinal judgment."

        Id. at 1301-02. The Seventh Circuit takes the position that dismissal of premature notices of appeal actually would increase administrative burdens on courts and litigants: "[D]ismissal of the appeal due to the belated certification would be 'empty paper shuffling' because the same papers would likely be before the court in a matter of months after appellants went through 'the empty formality of obtaining another certification and filing another notice of appeal.' " Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 760 F.2d 177, 181 (7th Cir.1985) (quoting Local P-171, Amalgamated Meat Cutters and Butcher Workmen v. Thompson Farms Co., 642 F.2d 1065, 1074 (7th Cir.1981)).

        Strictly speaking, precedent in this circuit does not require dismissal of this appeal. The A.O. Smith opinion did not cite or expressly overrule Morris v. Uhl & Lopez Engineers, Inc., 442 F.2d 1247 (10th Cir.1971), in which we took a more charitable approach to a premature notice of appeal. The facts of Morris closely parallel the instant case. The appellant there filed a notice of appeal without obtaining Rule 54(b) certification; the entire case was concluded by the district court by...

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