925 F.2d 941 (6th Cir. 1991), 89-3969, Purnell v. City of Akron

Docket Nº:89-3969.
Citation:925 F.2d 941
Party Name:Norman PURNELL, Administrator of the Estate of Armstead Land, a/k/a Armstad Land, Plaintiff-Appellee, v. CITY OF AKRON, et al., Defendants, v. Damon CAMPBELL; Carissa Campbell, Appellants.
Case Date:February 13, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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925 F.2d 941 (6th Cir. 1991)

Norman PURNELL, Administrator of the Estate of Armstead

Land, a/k/a Armstad Land, Plaintiff-Appellee,


CITY OF AKRON, et al., Defendants,


Damon CAMPBELL; Carissa Campbell, Appellants.

No. 89-3969.

United States Court of Appeals, Sixth Circuit

February 13, 1991

Argued Nov. 14, 1990.

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Edward L. Gilbert (argued), Akron, Ohio, for plaintiff-appellee.

Paul R. Reiners, Carol A. Costa (argued), Canton, Ohio, for appellants.

Before KENNEDY and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.

ENGEL, Senior Circuit Judge.

The appellants, Damon and Carissa Campbell, claim they are illegitimate offspring of Armstead Land and therefore entitled as a matter of right to intervene in a wrongful death action brought under Ohio law by the administrator of the estate of Mr. Land. The specific question raised on appeal is whether it was proper for the district judge to deny the petition to intervene without notice and without following through on his earlier determination to stay proceedings until there was a resolution of the paternity issue by the state court system of Ohio. The immediate issue is simply stated, but its resolution is considerably more complex and we are obliged to vacate the order appealed from and to remand for further proceedings.


At the time of his death, on February 17, 1988, Armstead Land was married to Barbara Land. He had fathered several children by her. The appellants, the Campbell children, claim they are illegitimate children fathered by Armstead Land with their mother, Evelyn Campbell. In April, 1988, the Campbell children, through their mother who had been appointed administrator of

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Armstead Land's estate, filed this case in U.S. district court.

The original complaint contains two counts. The first count, a survival action based on the violation of decedent's constitutional rights by defendants, the city of Akron and four police officers, was brought under 42 U.S.C. Sec. 1983. The prohibited conduct which led to Armstead Land's death, allegedly occurred in the process of arresting and restraining Armstead Land on or about February 17, 1988. The second count, asserting damages suffered by both the legitimate and illegitimate children as next of kin, was brought under the Ohio wrongful death statute, O.R.C. Sec. 2125.01 et seq. No other jurisdictional facts were alleged. The district court therefore concluded that any jurisdiction over count two, the state wrongful death claim, was pendent to the federal question claim in count one.

In August, 1988, Barbara Land's motion to intervene was granted as to count two, the state wrongful death claim. Intervention by the Land family was not allowed as to count one because the district court found that any recovery obtained from the survival action under section 1983 would accrue to the estate of Mr. Land, rather than to his beneficiaries; consequently, it reasoned Mrs. Land's interest was adequately protected by the administrator already appointed, Evelyn Campbell. The Land Family was given fifteen days leave to amend its intervention complaint to conform to the court's order. The intervention complaint bases federal jurisdiction on 28 U.S.C. Secs. 1331, 1332 and 1343, and asserts claims for damages under the Ohio survival and wrongful death statutes. In December, 1988, at the request of the Land family and in light of the competing interests between the legitimate and alleged illegitimate children of Armstead Land, the Ohio Summit County Probate Court replaced Evelyn Campbell, as administrator, by appointing Norman Purnell. The district court then substituted Purnell as the successor to Evelyn Campbell.

To protect their interests through their own counsel, the Campbell family moved to intervene in the pending district court action in February of 1989. The district court held the motion in abeyance with the following language:

At a hearing on this motion, this Court raised concern that the issue of whether the Campbell children are heirs must be resolved as soon as possible and before this case proceeds to trial. The correct forum for that determination, however, is the probate court. Therefore, this Court has directed Paul R. Reiners, attorney for the Campbell children, to seek a determination from the probate court without delay. Their Motion to Intervene will be held in abeyance until that determination is made.

In April, 1989, the Campbell children filed a complaint to determine heirship in the Ohio Summit County Probate Court. The district court abstained from ruling on the motion until October 19, 1989 when it denied intervention, as the probate court had not yet ruled on the heirship proceeding and this case was ready for trial. 1 From that order, which was certified as final under Rule 54(b), the Campbell children now appeal.


While we do not question that the district court had jurisdiction to consider the Campbells' motion to intervene, its order denying intervention only disposed of part of the case. Accordingly, we must initially determine whether we have jurisdiction to rule on the appeal. Section 1291 of Title 28 specifies that courts of appeals have jurisdiction only over "final decisions of the district courts...." See also Liberty

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Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1205, 47 L.Ed.2d 435 (1976) (When an interlocutory order is appealed, its "finality" must be raised sua sponte where the parties have not addressed that issue, as it is a jurisdictional prerequisite).

Judge Bell stated that his order denying intervention under Rule 24(a)(2) "constitute[d] a final judgment as to [the Campbells'] claim from which they may appeal pursuant to Federal Rule of Civil Procedure 54(b)." In its discretion, a district judge may use Rule 54(b) to certify an order for immediate appeal if it finally disposes of one or more but fewer than all of the claims for relief asserted, or completely determines the rights and liabilities of one or more but fewer than all of the parties. Rule 54(b), however, contains certain prerequisites. The rule allows the court to "direct the entry of a final judgment" in multiple claim or multiple party cases, the latter circumstance being present here, but "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." (emphasis added). Also, the district court must articulate the analysis guiding its certification; otherwise, any deference due the order is nullified. Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d 1155, 1159 (6th Cir.1988).

Judge Bell made an express determination of finality in his order by stating that it "constitute[d] a final judgment." He did not, however, set forth his reasons for the certification or expressly conclude that there was no just reason for delay. Failure to comply with those requirements makes the order unappealable under Rule 54(b). See Knafel, 850 F.2d at 1159-60; Corrosioneering, Inc. v. Thyssen Envtl. Sys., Inc., 807 F.2d 1279, 1284-85 (6th Cir.1988); Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 60-61 (6th Cir.1986).

Notwithstanding the lack of proper certification, compliance with Rule 54(b) is not always a prerequisite to judicial review of orders entered in suits involving multiple claims or multiple parties. The Campbell children originally moved the district court that they be granted the "right" to intervene pursuant to Rule 24(a)(2). It is fairly well established that denial of a motion to intervene as of right, i.e. one based on Rule 24(a)(2), is an appealable order. 2 E.g., Sam Fox Publ. Co. v. United States, 366 U.S. 683, 687-88, 81 S.Ct. 1309, 1312, 6 L.Ed.2d 604 (1961). The appealability of such orders developed independently and before the prerequisites for proper Rule 54(b) certification we noted earlier. See Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 512-13, 70 S.Ct. 322, 324-25, 94 L.Ed. 299 (1950). See also Huckeby v. Frozen Food Exp., 555 F.2d 542, 549 (5th Cir.1977) (citing United States v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 841 (5th Cir.1975) (the court agreed with appellant's argument that no Rule 54(b) certification is required to secure review of an order refusing leave to intervene)).

While case law in general does not clearly explain the basis for allowing interlocutory appeal of orders denying intervention, 6 Moore's Federal Practice Sec. 54.38, at 242-43 n. 4 (1990), the Supreme Court in Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987), suggested that orders denying intervention in any respect fall within the potential reach of the Cohen doctrine, a judicially crafted exception to the finality doctrine. 3 The Court in Stringfellow

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faced the question of whether an order denying intervention as a matter of right but allowing for permissive intervention, albeit on a restrictive basis, was appealable as a collateral order under the Cohen doctrine. The Court found that in such a case the permissive intervenor remains a participant in the proceeding and is thereby able to obtain effective review of its claims on appeal after trial. Accordingly, it concluded that there should be no immediate review. Id. 480 U.S. at 375, 107 S.Ct. at 1182. The Court, however, noted that "when an order prevents a putative intervenor from becoming a party in any respect, the order is subject to immediate review." Id. at 377, 107 S.Ct. at 1183 (citing Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 524-25, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646 (1947)) (emphasis in original).

As in Railroad Trainmen, Judge Bell's October 19, 1989 order denied intervention by the Campbell children in all respects...

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