Advey v. Celotex Corp., s. 90-6233

• Decision Date: 15 November 1991
• Docket Number: Nos. 90-6233,90-6319,s. 90-6233
• Citation: Advey v. Celotex Corp., 962 F.2d 1177 (6th Cir. 1991)
• Parties: James Louis ADVEY, et al., Plaintiffs, Horace Lee Bratcher; Daisy Marie Frazier Bratcher; John Leonard Bratcher; Edwina Faye Mayfield Bratcher; Francis Paul Creger; Patricia Ann Gregory Creger; Ray Anthony Dickens; Iris Elaine Bennett Dickens; Billy Norman Hibdon; Thelma White Davis Hibdon; Cecil Ray Hunter; Sinda Barber Hunter; James Earl McPheron; Shirley Ann Gilliam McPheron; John Wesley Millican; Willodean Durham Millican; John Walter Moore; Ruby Lee Gordon Moore; Alfred Clement Swider; Cecil Ray Todd; Nettie Joy Barrett Todd; Dennis Ray Turner; Rene Louis Willemin; Mary Lou Brewer Willemin; Ann Hall Sparks, individually and for the use and benefit of the next of kin of Richard Stanley Sparks, deceased, Plaintiffs-Appellants, v. The CELOTEX CORPORATION, et al., Defendants, Owens Corning Fiberglas Corporation; Garlock, Inc.; Anchor Packing Company; H.K. Porter Company, Inc., Defendants-Appellees. James Louis ADVEY, et al., Plaintiffs, Ann Hall Sparks, individually and for the use and benefit of the next of kin of Richard Stanley Sparks, deceased, Plaintiff-Appellant, v. The CELOTEX CORPORATION, et al., Defendants, Owens Corning Fiberglas Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1177

962 F.2d 1177

22 Fed.R.Serv.3d 663

James Louis ADVEY, et al., Plaintiffs,

Horace Lee Bratcher; Daisy Marie Frazier Bratcher; John

Leonard Bratcher; Edwina Faye Mayfield Bratcher; Francis

Paul Creger; Patricia Ann Gregory Creger; Ray Anthony

Dickens; Iris Elaine Bennett Dickens; Billy Norman Hibdon;

Thelma White Davis Hibdon; Cecil Ray Hunter; Sinda Barber

Hunter; James Earl McPheron; Shirley Ann Gilliam McPheron;

John Wesley Millican; Willodean Durham Millican; John

Walter Moore; Ruby Lee Gordon Moore; Alfred Clement

Swider; Cecil Ray Todd; Nettie Joy Barrett Todd; Dennis

Ray Turner; Rene Louis Willemin; Mary Lou Brewer Willemin;

Ann Hall Sparks, individually and for the use and benefit

of the next of kin of Richard Stanley Sparks, deceased,

Plaintiffs-Appellants, v.The CELOTEX CORPORATION, et al., Defendants,

Owens Corning Fiberglas Corporation; Garlock, Inc.; Anchor

Packing Company; H.K. Porter Company, Inc.,

Defendants-Appellees.

James Louis ADVEY, et al., Plaintiffs,

Ann Hall Sparks, individually and for the use and benefit of

the next of kin of Richard Stanley Sparks,deceased, Plaintiff-Appellant, v.The CELOTEX CORPORATION, et al., Defendants,Owens Corning Fiberglas Corporation, Defendant-Appellee.

Nos. 90-6233, 90-6319.

United States Court of Appeals Sixth Circuit.

Nov. 15, 1991.

Decided April 28, 1992.

Rehearing and Rehearing En Banc

Denied June 16, 1992.

Michael Y. Rowland(argued and briefed), James R. LaFevor(briefed), Rowland & Rowland, Knoxville, Tenn., for plaintiffs-appellants.

Harry P. Ogden, Gerald L. Gulley, Jr., Lewis, King, Krieg & Waldrop, Knoxville, Tenn., Leonard F. Pogue, III(argued), Morton, Lewis, King & Krieg, Nashville, Tenn., Harmon S. Graves(argued), Charles Q. Socha, Greg L. Perczak, David D. Schlachter, David M. Setter, Robert O. Kristufek, Tilly & Graves, John W. Grund(briefed), Montgomery, Green, Jarvis, Kolodny & Markusson, Denver, Colo., for defendant-appelleeOwens Corning Fiberglas Corp.

G. Kevin Hardin, Martin L. Ellis, William D. Vines, Brian C. Quist, Butler, Vines, Babb & Threadgill, Knoxville, Tenn., for defendant-appelleeRock Wool Mfg. Co.

John W. Baker, Jr., Weldon E. Patterson(argued and briefed), Jay Baker, Poore, Cox, Baker, Ray & Byrne, Knoxville, Tenn., for defendant-appelleeAnchor Packing Co.

Paul R. Leitner, John B. Curtis, Jr.(argued and briefed), Leitner, Warner, Moffitt, Williams, Dooley & Carpenter, Chattanooga, Tenn., for defendant-appelleeGarlock, Inc.

Before MARTIN and SUHRHEINRICH, Circuit Judges, and HILLMAN, Senior District Judge.^*

SUHRHEINRICH, Circuit Judge.

Plaintiffs in Case No. 90-6233 appeal summary judgment dismissing defendants from this consolidated action involving claims for injuries allegedly caused by exposure to asbestos.Defendants rely on Fed.R.App.P. 4(a)(4) to challenge this court's jurisdiction.PlaintiffAnn Hall Sparks brings a separate appeal from the district court's ruling that Sparks's claim is barred by the statute of limitations.

We read Rule 4(a)(4) to prohibit jurisdiction in Case No. 90-6233.For the reasons indicated below, we affirm the summary judgment ruling and reverse the district court's holding on Sparks's statute of limitations claim.

I

This litigation began on July 29, 1987 when twenty plaintiffs, not including Sparks, filed a products liability suit against sixteen defendants("Advey I ").The plaintiffs worked at the Firestone Tire Manufacturing plant in LaVergne, Tennessee from 1972 until at least the mid-1980's.Some of the plaintiffs still work at the plant, which was purchased in 1983 by Bridgestone Tire Manufacturing USA, Inc., a non-party to this litigation.

A blizzard of motions, responses, and judicial orders followed the original complaint.On September 15, 1987plaintiffs filed a motion to amend the complaint by adding Sparks as a plaintiff.Eight days later the district court denied the motion and dismissed Advey I for lack of subject matter jurisdiction.

Another lawsuit was filed on September 21, 1988(Dist.Ct.Case No. 3-88-0799 or "Advey II ").Advey II identified twenty plaintiffs, including Sparks, and named seventeen defendants, fourteen of whom were named in Advey I. R.T. Vanderbilt Co., one of the defendants named in Advey I, was inexplicably omitted from the complaint in Advey II.This omission was corrected on January 26, 1989 when the Advey II plaintiffs filed a separate suit against Vanderbilt(Dist.Ct.Case No. 3-89-0075).In February 1989the district court consolidated the two cases and issued a scheduling order.

Following the district court's ruling that the plaintiffs were not diligent during discovery, the defendants' motions for summary judgment were granted.The court found that the plaintiffs had failed to establish a genuine issue of material fact supporting the claim that asbestos products proximately caused their injuries.

The court also dismissed the claim by plaintiff Sparks against defendants Crane, Vanderbilt, Owens-Corning, Anchor Packing, and Sepco.The court observed that Sparks's claim was not brought within the period provided by the statute of limitations.This appeal followed.

II

A

We first address the threshold issue of appellate jurisdiction.In February 1989 the suit against defendant Vanderbilt was consolidated with the original case filed by the same group of plaintiffs.On August 23, 1990the district court entered an order containing both case numbers.The order 1) dismissed without prejudice Sparks's claim against defendants Crane, Vanderbilt, Owens-Corning, Anchor Packing, and Sepco; 2) dismissed without prejudice all plaintiffs' claims against Vanderbilt as barred by the statute of limitations, and 3) dismissed with prejudice the claims against defendants Crane, Sepco, Garlock, Anchor Packing, Porter, Empire Ace, Celotex, National Friction, Rock Wool, and Owens-Corning.

Vanderbilt responded on September 4, 1990 by filing a Rule 59(e)motion to alter the judgment to a dismissal with prejudice in the suit involving Sparks.Fed.R.Civ.P. 59(e).On September 21, 1990 fourteen plaintiffs filed a notice of appeal from the August 23 order.The case docketed from this appeal is Case No. 90-6233.

On September 28, 1990the district court granted Vanderbilt's Rule 59(e)motion to dismiss with prejudice Sparks's claim against Vanderbilt, Crane, Owens-Corning, Anchor Packing, and Sepco.The court also dismissed with prejudice the claims of all plaintiffs against Vanderbilt as barred by the statute of limitations.Sparks's appeal was timely filed on October 12, 1990 and docketed as Case No. 90-6319.

Resolution of the jurisdictional issue in Case No. 90-6233 is governed by Fed.R.App.P. 4(a)(4), which provides:

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party ... under Rule 59 to alter or amend the judgment ... the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.A notice of appeal filed before the disposition of any of the above motions shall have no effect.A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

The notice of appeal in Case No. 90-6233 was filed on September 21, 1990, during the pendency of the Rule 59(e) motion.Under Rule 4(a)(4), "[a] notice of appeal filed before the disposition of [a Rule 59 motion] shall have no effect."

The Supreme Court has strictly construed Rule 4(a)(4).SeeGriggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225(1982).In Griggsthe Court held that a premature notice of appeal was "as if no notice of appeal were filed at all.And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act."Id. at 61, 103 S.Ct. at 403.

Application of the unambiguous language of Rule 4(a)(4) and of Supreme Court precedent to the facts before us can lead to only one result.The notice of appeal filed by plaintiffs on September 21, 1990 was premature and renders Case No. 90-6233 a nullity.This court lacks jurisdiction to act in that case.

The plaintiffs rely on Stacey v. Charles J. Rogers, Inc., 756 F.2d 440(6th Cir.1985), to argue that Vanderbilt's Rule 59(e) motion only tolled the time of plaintiffs' appeal of the judgment in favor of Vanderbilt, not the appeal from the judgment for the other defendants.On this view, only Vanderbilt is immunized by the pending Rule 59 motion from the untimely September 21 notice of appeal.

Stacey involved the consolidated action of three groups of plaintiffs.Following the judgment, one group filed a timely Rule 59 motion and the other two groups filed untimely Rule 59 motions.This court said that it lacked jurisdiction to hear the appeals of the latter two plaintiffs.The court reasoned that "it is perfectly reasonable to require each plaintiff in a consolidated proceeding to follow procedural rules as they apply to each plaintiff."Id. at 442-443.

Stacey does not support jurisdiction here.First, jurisdiction was absent in Stacey because of a failure to comply with the 30-day filing requirement, not due to a notice of appeal filed during the pendency of a Rule 59 motion.

Second, plaintiffs in this case filed a notice of appeal during the pendency of a motion involving their own claims.The plaintiffs attempt to divorce Vanderbilt from other defendants and to suggest that appeals against the other defendants are justiciable on the basis of the September 21 notice.

But practically speaking, Vanderbilt's Rule 59 motion meant that all plaintiffs had pending action in the district court on September 21.The pending motion involved not only all plaintiffs, but also defendants Owens-Corning and Anchor Packing, both of whom were named in the September 21 notice of appeal.Accepting jurisdiction under these circumstances would run afoul of the principle that two court...