Arango v. Guzman Travel Advisors

• Decision Date: 04 June 1985
• Docket Number: No. 84-5266,84-5266
• Citation: 761 F.2d 1527
• Parties: Ramiro ARANGO and Gabriella Arango individually and as parents and best friends for their minor children, Anna C. Arango and Krishna O. Arango, Plaintiffs-Appellants, v. GUZMAN TRAVEL ADVISORS, et al., Defendants, and Compania Dominicana De Aviacion, C. Por A. (Dominicana Airlines) Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1527

761 F.2d 1527

2 Fed.R.Serv.3d 867

Ramiro ARANGO and Gabriella Arango individually and as parents and best friends for their minor children Anna C. Arango and Krishna O. Arango Plaintiffs-Appellants, v. GUZMAN TRAVEL ADVISORS, et al., Defendants and Compania Dominicana De Aviacion, C. Por A. (Dominicana Airlines) Defendant-Appellee.

No. 84-5266

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

June 4, 1985.

San Pedro & Fernandez, Miami, Fla., for plaintiffs-appellants.

Galland, Kharasch, Calkins & Short, P.A., Washington, D.C., Celestino Pena, Whitestone, N.Y., Stephen C. Pascal, New York City, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

KRAVITCH, Circuit Judge:

This litigation, involving an action for damages by a passenger against an airline, has once before travelled the appellate route. See Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (5th Cir.1980). On the present journey, plaintiffs-appellants, Ramiro Arango and his family, claim that the district court should have tried the case to a jury, and that the court erred in ruling in favor of the defendant-appellee, Compania Dominicana De Aviacion (Dominicana). We conclude that the district court properly denied a jury trial in this action, and correctly rendered judgment in favor of the defendant. Sua sponte, we raise the question whether we have jurisdiction to hear this appeal. We conclude that we do, but we instruct the district court to take appropriate action upon receipt of our remand.

I. BACKGROUND

The Arangos' claim arose out of an attempt to vacation in the Dominican Republic. They arranged their trip through a travel agency by purchasing a "package tour" that included round-trip air transportation between Miami and Santo Domingo via Dominicana. Food, lodging and transportation to and from the Santo Domingo Airport were to be provided by the local Sheraton Hotel. Unfortunately for the Arangos, their vacation plans went awry when, upon their arrival at the Santo Domingo Airport, Dominican Republic immigration officials refused to permit Ramiro Arango to enter the country. Apparently the Government of the Dominican Republic maintained a list of "undesirable aliens," which included Ramiro Arango's name. Immigration officials ordered Dominicana to take the Arangos out of the country on its next flight departing for their country of origin. Accordingly, the Arangos were taken to San Juan, Puerto Rico, where they spent the night. The next day, they travelled to Port-au-Prince, Haiti. Three days later, the family returned to Miami.

The Arangos initiated this lawsuit in state court in Florida against four defendants: Guzman Travel Advisors Corporation, from whom appellants purchased their tour package; Trailways Travel and Tourism International Corporation, the tour organizer; Sheraton Hotels and Inns, whose Santo Domingo Hotel was to provide food and lodging for appellants during their stay; and Dominicana. Their complaint alleged negligence, breach of warranty, breach of contract, false imprisonment, and battery. Dominicana, which is the national airline of the Dominican Republic, wholly owned by that nation's government, removed the lawsuit to federal district court. There, Dominicana filed a motion to dismiss, arguing that (1) it was immune from liability, and (2) the complaint failed to state a claim because all of the alleged injuries were caused by the actions of the Dominican Republic immigration officials, and the Act of State Doctrine precluded judicial scrutiny of these acts. Without specifying the ground upon which it relied, the district court granted the motion to dismiss, and the Arangos appealed. The former Fifth Circuit dismissed the appeal for lack of jurisdiction because the district court's order did not dispose of the claims against the other defendants; thus, there was not a final appealable order. Arango, 621 F.2d at 1378. Nevertheless, to expedite the litigation, the court offered some definitive guidelines to resolve the plaintiffs' claims, id. at 1378-82, and remanded the case to the district court. In accordance with these directives, the district court dismissed defendant Sheraton from the lawsuit. The clerk of the court then issued an entry of default against defendants Guzman and Trailways, both of whom failed to enter an appearance or file a pleading after Dominicana removed the case to federal court. Final judgment, however, was never entered against either party. When Dominicana moved for summary judgment, the court granted the motion as to the breach of warranty claim, but set the contract and negligence claims for trial. Pursuant to the parties' stipulation that Dominicana was a foreign state within the meaning of 28 U.S.C. Sec. 1603(a), the court tried the case without a jury. After the trial, the court entered judgment for Dominicana. This appeal ensued.

II. WHETHER THIS COURT HAS JURISDICTION

Preliminarily, we raise the question, sua sponte, of whether we have jurisdiction to hear this appeal. Upon the motion of the Arangos, the clerk of the court below issued entries of default against defendants Guzman and Trailways. Fed.R.Civ.P. 55(a). Following the trial, the district court judge ruled from the bench in favor of Dominicana, stating that he would issue his findings and conclusions in written form at a later date. The Arangos' attorney reminded the court that two of the defendants were in default. The judge responded that he did not understand how either party could be responsible for the failed vacation, but he stated that "if there is a requirement that they (plaintiffs) be reimbursed, the amount of their actual damages would be the amount of the $1,000 for the frustration of their vacation and the amount of their damages in San Juan, which they have alleged or recited to be approximately $75, so those would be the amounts of damages." The court incorporated these conclusions in the order.

Our examination of the record and the docket sheet, however, indicates that no final judgment was entered against either Guzman or Trailways. An entry of default is not a default judgment. See Fed.R.Civ.P. 55(b) (delineating terms upon which judgment of default may be entered); see also Fed.R.Civ.P. 58 (requiring that every judgment be set forth on a separate document).

Under 28 U.S.C. Sec. 1291, "The courts of appeals ... have jurisdiction of appeals from all final decisions of the district courts of the United States." Without the presence of a certificate under Federal Rule 54(b), the final decision rule ordinarily operates to permit an appeal only from a judgment that finally determines all claims as to all parties. Tower v. Moss, 625 F.2d 1161, 1164 (5th Cir.1980). See generally 10 C. Wright & A. Miller, Federal Practice and Procedure Secs. 2653-2661 (1983).

In Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (per curiam), the Supreme Court determined that the failure to comport with all procedural rules governing entry of judgments did not necessarily render a court of appeals without jurisdiction. The district court in that case issued a combined opinion and order dismissing the complaint, but failed to issue a separate document entering a final judgment as required by Federal Rule 58. The Supreme Court assumed without deciding that the requirements for an effective judgment set forth in the Federal Rules must be satisfied before an appeal could be brought under section 1291, equating section 1291's requirement of a "final decision," with a "judgment" under the Federal Rules. 98 S.Ct. at 1119 & n. 4. The Court concluded, however, that the sole purpose of Rule 58's separate document requirement was to clarify when the time for an appeal begins to run. Id. at 1120; see 28 U.S.C. Sec. 2107; Fed.R.App.P 4(a). This purpose would not be furthered by a holding that appellate jurisdiction does not exist without a separate document entering judgment. 98 S.Ct. at 1120. Furthermore, the appellee never objected to the appeal; thus, the Court deemed that the parties had waived Rule 58's requirement. Id. at 1121.

The Bankers Trust decision has been used on several occasions to sustain jurisdiction when there was no separate document entering judgment, provided that the district court clearly evidenced that it had entered its final decision. See, e.g., Diaz v. Schwerman Trucking Co., 709 F.2d 1371, 1372 n. 1 (11th Cir.1983); Hanson v. Town of Flower Mound, 679 F.2d 497, 500-02 (5th Cir.1982). Some courts have taken jurisdiction even when the appellee objected to the lack of a separate document entering judgment. See, e.g., International Brotherhood of Teamsters v. Western Pa. Motor Carriers Ass'n., 660 F.2d 76, 79-80 (3d Cir.1981) (court did not discuss fact that appellee sought to dismiss appeal on this basis); Leonhard v. United States, 633 F.2d 599, 611-12 (2d Cir.1980) (party who objected failed to show how entertaining appeal would be prejudicial), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981).

Although we are aware of no reported decision in which a court heard an appeal from a multi-party lawsuit when there was no default judgment entered against a party in default, we believe that the Bankers Trust rationale is applicable here, given the facts of this case. A default judgment can be entered by the clerk of the court, when, as here, a party is in default for failure to appear. Fed.R.Civ.P. 55(b)(1). The Federal Rules do not even require that parties who default for failure to appear receive notice of the default judgment. 6 Moore's Federal Practice p 55.05 (2d Ed.1983). The Arangos sought to have a default judgment entered at the time they moved for entry of default. The clerk may have refused to enter judgment because the amount of damages was not a sum certain. Fed.R.Civ.P. 55(b)(1)....