Austracan, (U.S.A.) Inc. v. M/V Lemoncore, 73-2561

• Decision Date: 30 August 1974
• Docket Number: No. 73-2561,73-2561
• Citation: 500 F.2d 237
• Parties: AUSTRACAN, (U.S.A.) INC., et al., Plaintiffs-Appellants, v. M/V LEMONCORE, etc., and Maritime Fruit Carriers et al., Defendants. REFRIGERATED EXPRESS LINE, (A/ASIA) PTY. LTD., etc., et al., Defendants-Third-Party Plaintiffs-Appellants, v. CENTRAL COLD STORAGE, INC., and Harrington & Company, Inc., Third-Party Defendants-Appellees (two cases). BAJALAD & COMPANY, Plaintiff-Appellant, v. MARITIME FRUIT CARRIERS et al., Defendants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 237

500 F.2d 237

AUSTRACAN, (U.S.A.) INC., et al., Plaintiffs-Appellants, v. M/V LEMONCORE, etc., and Maritime Fruit Carriers et al., Defendants.

REFRIGERATED EXPRESS LINE, (A/ASIA) PTY. LTD., etc., et al., Defendants-Third-Party Plaintiffs-Appellants, v. CENTRAL COLD STORAGE, INC., and Harrington & Company, Inc.,

Third-Party Defendants-Appellees (two cases).

BAJALAD & COMPANY, Plaintiff-Appellant, v. MARITIME FRUIT CARRIERS et al., Defendants.

No. 73-2561.

United States Court of Appeals, Fifth Circuit.

Aug. 30, 1974.

Harry Zuckerman, Miami, Fla., for Austracan (U.S.A.) et al.

Frank J. Marston, Miami, Fla., for Refrigerated Express Line.

A. Dan Killian, Jr., Miami, Fla., for Central Cold Storage, Inc.

John H. Schulte, Miami, Fla., for Harrington & Co., Inc.

Myers, Kaplan, Porter, Levinson & Kenin, Miami, Fla., for Nat. Cold Storage.

Dixon, Dixon, Lane & Mitchell, Miami, Fla., for Maritime Fruit Carriers.

Reginald M. Hayden, Jr., Miami, Fla., for John Thallon & Co. et al.

Pallot, Poppell, Goodman & Shapo, Miami, Fla., for Borthwick & Sons.

Pozen, Pestcoe, Gold, Gold & Minsker, Miami, Fla., Watkins & Daniells, Atlanta, Ga., for Refrigerated Transport.

Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.

COLEMAN, Circuit Judge.

Finality is a condition of federal appellate review, so written into the first Judiciary Act. It has been departed from only when its observance would practically defeat the right to any review at all. From the very beginning, piecemeal disposition of what, for practical purposes, is a single controversy has been forbidden. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1939); 28 U.S.C. 1291 and 1292; F.R.Civ.P., Rule 54.

In recent years the decisions of this Court indicate a growing neglect of these principles among those who attempt to prosecute appeals from non-final district court action. We cite a few of the cases: Cook v. Eizenman, 5 Cir., 1963, 312 F.2d 134; Bailey v. Rowan Drilling Company, 5 Cir., 1971, 441 F.2d 57; International Harvester Credit Corporation v. Belding, 5 Cir., 1972, 462 F.2d 624; Foret v. McDermott, 5 Cir., 1973, 484 F.2d 992; State National Bank of El Paso v. United States, 5 Cir., 1974, 488 F.2d 890; Anderson v. Robinson, 5 Cir., 1974, 494 F.2d 45.

Premature appeals not only subject counsel to fruitless burdens but it has the same effect upon courts, with their crowded calendars and the duty to decide the many appeals of which it does have jurisdiction. Nor does this practice assist the client, who needs, and is entitled to, a final decision as speedily as reasonably possible.

For lack of finality, and for lack of a Rule 54(b) certificate, these appeals, brought by the various appellants, must be dismissed.

This appeal involves six different cases in the United States District Court for the Southern District of Florida. The record on appeal consists of six volumes. In each of the six cases the plaintiffs are allegedly the consigness of cargo carried on board the M/V 'LEMONCORE' from Australia and discharged in a non-designated port in Florida.

In each case the defendant-third party plaintiff, Refrigerated Express Line (REL), was the time charterer of the vessel. In each case Central Cold Storage (CCS), a Florida corporation, is named as one of several defendants. In five of the six cases Harrington, a Florida corporation engaged in stevedoring, is named as one of several defendants.

In each case plaintiffs allege a contract of carriage with REL and a deviation by REL in discharging the plaintiffs' cargo at ports not designated in the bill of lading, resulting in damage to plaintiffs by the cargo becoming lost, stolen, strayed, or otherwise damaged. None of the acts complained of by any of the plaintiffs are alleged to have occurred on navigable waters.

In four of the six cases the amended complaints were filed with leave to the plaintiffs to file second amended complaints and in each of them the plaintiffs abandoned their complaints against CCS and Harrington (Vols. I, III, IV, V). In the remaining two cases, the plaintiff Borthwick (Vol. VI) filed a second amended complaint against Harrington and CCS which was dismissed with prejudice (Vol. VI, pp. 58-59). No appeal was taken by Borthwick from that dismissal.

In Bajalad a second amended complaint was filed (Vol. II), which defendants CCS and Harrington moved to dismiss for failure to state a claim upon which relief could be granted. The District Court granted this motion, dismissing Bajalad's complaint as to two but not all the parties.

In each of the six volumes involved, defendant REL filed third party complaints against Harrington and CCS. REL's appeal is based on the District Court's order of dismissal with prejudice of REL's third party complaints against Harrington and CCS (Vol. I, p. 106).

As to plaintiff-appellant Austracan, the District Court dismissed an amended complaint as to two of six defendants, with leave to file second amended complaints within ten days. The second amended complaints were never filed. Regarding this plaintiff, no final judgment was ever entered, there was no F.R.Civ.P. 54(b) certificate filed, nor was a 28 U.S.C. 1292(b) certificate issued.

Although motions to dismiss have been denied under our administrative procedures, the Court of Appeals is not precluded from a further inquiry as to its jurisdiction and is not relieved of the duty to dismiss the appeal if it appears there is no jurisdiction, Cook v. Eizenman, supra.

Plaintiff-appellant Austracan's amended complaint was dismissed by the District Court and they were given ten days to file a second amended complaint (Vol. I, pp. 62-64). They never did so, but instead take their appeal from '. . . that certain final order entered herein and filed on the 24 day of April, 1973' (Vol. I, p. 110). The District Court never entered judgment, and neither the order of February 21 nor the order of April 24 contained a Rule 54(b) certificate.

Accordingly, the order appealed from is not final as to Austracan, and this Court is without jurisdiction of its appeal.

Some relevant cases are:

1. A judgment or order is final for purposes of appealability when it ends the litigation on the merits and comprehends only execution of the court's decree, Johnson v. Combs, 5 Cir., 1972, 471 F.2d 84.

2. District Court's order dismissing allegations of Florida statutory and common law fraud as to only four of the defendants on the basis that they could not be properly served with process on any claim other than that arising under the Securities Act (Code section omitted) was not final and where there had been no attempt to comply with requirements of statute or Rule 54(b) appeal would be dismissed for want of jurisdiction, Ratner v. Scientific Resources Corp., 5 Cir., 1972, 462 F.2d 616.

3. In railroad's action to recover alleged undercharges on interstate shipment of sugar cane, order striking defendant's basic defense, granting leave to both parties to amend pleadings generally, was not a final appealable decision, United States Sugar Corp. v. Atlantic Coast Line R. Co., 5 Cir., 1952, 196 F.2d 1015.

4. Appeal dismissed for lack of jurisdiction where District Court adjudicated fewer than all the claims as to all the parties in the absence of an express determination that there was no just reason for delay. 'Absent an express determination by the trial court that there is no just reason for delay, its judgment in the instant case lacks the requisite finality to be an appealable decision within the meaning of 28 U.S.C. 1291.' Appeal dismissed, Bailey v. Rowan Drilling Company, supra.

5. Judgment lacked requisite finality to be appealable where it adjudicated fewer than all the claims and liabilities of fewer than all the parties and where there was no entry of final judgment by the district court upon an express determination that there is no just reason for delay as required by F.R.Civ.P. 54(b), International Harvester Credit Corp. v. Belding, supra.

Likewise, invocation of admiralty jurisdiction is of no help. Neither the February 21 nor the April 20 order was a final one under 28 U.S.C. 1291, nor was either an interlocutory admiralty decree 'determining the rights and liabilities of the parties' under 28...