Adkins v. Safeway, Inc.

• Decision Date: 26 February 1993
• Docket Number: No. 91-7136,91-7136
• Citation: 985 F.2d 1101
• Parties: 61 Empl. Prac. Dec. P 42,073, 300 U.S.App.D.C. 42, 24 Fed.R.Serv.3d 1306 Donald Leroy ADKINS, Appellant, v. SAFEWAY, INC., et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1101

985 F.2d 1101

61 Empl. Prac. Dec. P 42,073, 300 U.S.App.D.C. 42,

24 Fed.R.Serv.3d 1306

Donald Leroy ADKINS, Appellant, v. SAFEWAY, INC., et al.

No. 91-7136.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 5, 1993.

Decided Feb. 26, 1993.

Appeal from the United States District Court for the District of Columbia (89-cv-3054).

Arnold B. Podgorsky, argued the cause, and filed the briefs, for appellant.

Neal D. Mollen, of the bar of the Supreme Court of Virginia, pro hac vice, by special leave of the court, argued the cause for appellee Safeway, Inc. With him on the brief was Richard C. Hotvedt.

John R. Mooney, argued the cause, for appellee Milk Drivers and Dairy Employees Union Local No. 246.

Before: BUCKLEY, SENTELLE, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

When the attorneys jointly representing Donald L. Adkins and twelve other dairy truck drivers sought to appeal the district court's dismissal of their clients' age discrimination suit, they filed a notice of appeal captioned "DONALD LEROY ADKINS, et al., Plaintiffs vs. SAFEWAY STORES, INC., et al., Defendants." The body of the notice stated, in its entirety:

PLAINTIFFS' JOINT NOTICE OF APPEAL

Pursuant to Rule 3 of the Federal Rules of Appellate Procedure, plaintiffs respectfully notice their appeal to the United States Court of Appeals for the District of Columbia Circuit from the Memorandum Opinion And Order filed in this action on June 21, 1991.

On defendants' motions to dismiss, a panel of this court held that Adkins' twelve fellow plaintiffs had not complied with Rule 3, Fed.R.App.P., and dismissed their appeal. 968 F.2d 1317 (D.C.Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 968, 122 L.Ed.2d 123 (1993). The motions panel referred the question whether Adkins had perfected his appeal to the panel considering the merits. We hold that Adkins has properly appealed but reject his age discrimination claim.

Rule 3(c) of the appellate rules provides that "[t]he notice of appeal shall specify the party or parties taking the appeal...." The Supreme Court in Torres v. Oakland Scavenger Co., 487 U.S. 312, 318, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988), read Rule 3(c) to require "some designation that gives fair notice of the specific individual or entity seeking to appeal." The Court's reading in Torres resulted in its dismissing, on jurisdictional grounds, the appeal of one plaintiff (there were sixteen altogether) not named in the notice of appeal. In the earlier decision in this case, the motions panel concluded that the generic term "plaintiffs," standing alone, did not provide adequate notice under Torres of the appeals of the non-captioned plaintiffs. See 968 F.2d at 1319.

Appellees Safeway, Inc., and Local No. 246 of the Milk Drivers and Dairy Employees Union now contend that the presence of Adkins' name in the caption of the notice did not satisfy the appellate rules. Their argument goes like this. Notices of appeal, although governed by the Federal Rules of Appellate Procedure, are filed with the clerks of the district courts. Rule 10(a) of the Federal Rules of Civil Procedure provides that for "pleadings" other than complaints, "it is sufficient to state the name of the first party on each side with an appropriate indication of other parties." Rule 7(b)(2), Fed.R.Civ.P., also allows the use of such short-form captions in "all motions and other papers provided for by these rules." Appellees say the caption of the notice of appeal in this case merely complied with these rules. Viewed in light of the rules, so the argument goes, the notice conveyed to the reader simply that Adkins was a plaintiff and that he was the first party listed in the complaint, neither of which says anything about his intentions regarding appeal.

The immediate problem with the argument is its misconstruction of the rules of civil procedure. A notice of appeal is not a "pleading." Only complaints, answers, replies to counterclaims, and third-party complaints and third-party answers are "pleadings." Rule 7(a), Fed.R.Civ.P. And a notice of appeal is not, under Rule 7(b)(2), a motion or other paper "provided for by" the Federal Rules of Civil Procedure. Notices of appeal are "provided for by" the rules of appellate procedure. Therefore, neither Rule 10(a) nor Rule 7(b)(2) applies and there is no reason why anyone should have read Adkins' notice in light of those rules.

At any rate, we will not encumber Rule 3 with such quiddities. Someone was appealing. The question was "Who?" The body of the notice answered "plaintiffs." This meant more than one. But which ones? "Plaintiffs," the motions panel held, does not necessarily encompass "all plaintiffs." 968 F.2d at 1319. The reference in the notice to the district court's order granting summary judgment scarcely cleared things up. All plaintiffs had presented identical legal claims. All lost on the same ground in the same order. But from reviewing the notice of appeal, appellees at least knew what legal position on the merits they were going to have to defend in this court. Furthermore, even though the term "plaintiffs" did not necessarily signify "all plaintiffs," appellees could hardly have taken "plaintiffs" to mean "no plaintiffs." "DONALD LEROY ADKINS" in the caption proclaimed at a minimum that he was appealing. Using a person's name in the caption designates the person as a "party" to the appeal, at least when nothing in the body of the notice states otherwise. This distinguishes the case fromTorres, where the omission of Torres' name from an otherwise-exhaustive list of the plaintiffs seeking to appeal suggested that Torres was not among them. The appearance of Adkins' name in the caption also quells the practical concern, expressed in Torres, that without specificity, future courts would not know whether an unnamed person should be considered to have been a party and thus bound by an adverse judgment. See 487 U.S. at 318, 108 S.Ct. at 2409.

Our approach is consonant with Milanovich v. Costa Crociere, S.p.A., 938 F.2d 297 (D.C.Cir.1991), holding that the caption "Gregory Milanovich et ux." on a notice of appeal filed on behalf of "plaintiffs" preserved the appeals of both Milanovich and his wife. By definition the "ux." had to refer to Milanovich's wife, and with only two plaintiffs in the district court, the term "plaintiffs" in the body could only mean that both Milanovichs sought to appeal. 938 F.2d at 298. Cf. Chennareddy v. Bowsher, 935 F.2d 315, 318 n. 2 (D.C.Cir.1991).

Our holding that a person whose name appears in the caption of a notice of appeal, followed by "et al.," has perfected his appeal although the body of the notice describes those appealing merely as "plaintiffs," is also consistent with similar post-Torres decisions of the overwhelming majority of courts of appeals. See General Elec. Co. v. Lehnen, 974 F.2d 66, 67 (8th Cir.1992); Cammack v. Waihee, 932 F.2d 765, 769 n. 7 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3027, 120 L.Ed.2d 898 (1992); Laidley v. McClain, 914 F.2d 1386, 1388-90 (10th Cir.1990); Cruz v. Melendez, 902 F.2d 232, 235-36 (3d Cir.1990); Minority Employees of Tenn. Dep't of Employment Sec., Inc. v. State of Tenn., Dep't of Employment Sec., 901 F.2d 1327, 1335-36 (6th Cir.) (en banc), cert. denied, 498 U.S. 878, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990); Barnett v. Petro-Tex Chem. Corp., 893 F.2d 800, 805 (5th Cir.), cert. denied, 497 U.S. 1025, 110 S.Ct. 3274, 111 L.Ed.2d 784 (1990); Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir.1989). In each of these cases, the caption of the notice of appeal named one putative appellant followed by "et al." while the body contained non-specific language like "defendants" or "plaintiffs above-named." Each court held that the notice perfected the appeal of the person named in the caption but not his fellow plaintiffs or defendants. (Cammack so held in the alternative, after finding the notice adequate for the unnamed plaintiffs.) See also Shatah v. Shearson/American Express, Inc., 873 F.2d 550, 552 (2d Cir.1989); Cotton v. U.S. Pipe & Foundry Co., 856 F.2d 158, 161-62 (11th Cir.1988). Only the Seventh Circuit has squarely held to the contrary. The Seventh Circuit derived its rule from Allen Archery, Inc. v. Precision Shooting Equipment, Inc., 857 F.2d 1176, 1177 (7th Cir.1988) (per curiam), a case in which the caption of the notice of appeal named defendants Precision Shooting Equipment and Paul Shepley but the body declared: "Notice is hereby given that Precision Shooting Equipment, Inc., defendant, hereby appeals...." The...