Bristol v. Fibreboard Corp., 85-1974
| Decision Date | 02 May 1986 |
| Docket Number | No. 85-1974,85-1974 |
| Citation | 789 F.2d 846 |
| Parties | Gene Kendel BRISTOL; and Fern Bristol, Plaintiffs-Appellants, v. FIBREBOARD CORPORATION; Owens-Corning Fiberglass Corporation; Eagle-Picher Industries, Inc.; Pittsburgh-Corning Corporation; Celotex Corporation; GAF Corporation; Standard Asbestos Manufacturing and Insulation Company; Nicolet Industries, Inc.; Keene Corporation; Combustion Engineering, Inc.; Forty-Eight Insulation, Inc.; Owens-Illinois, Inc.; Raymark Industries, Inc.; Flintkote Company; Rock Wool Manufacturing Company; H.B. Fuller Company; H.K. Porter Company; National Gypsum Co., Defendants-Appellees, Johns-Manville Sales Corporation; Ryder Industries; Unarco Industries, Inc., Defendants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Mark H. Iola of Ungerman, Conner & Little, Tulsa, Okl., for plaintiffs-appellants.
Murray E. Abowitz and Mort G. Welch of Abowitz & Welch, Oklahoma City, Okl., for defendants-appellees Fibreboard Corp., Owens-Corning Fiberglass Corp., Eagle-Picher Industries, Inc., Pittsburgh-Corning Corp., Celotex Corp., Keene Corp., Owens-Illinois, Inc., Flintkote Co., Rock Wool Mfg. Co., H.K. Porter Co., and Nat. Gypsum Co.
R. Casey Cooper and Linda Chindberg Hubble of Boesche, McDermott & Eskridge, Tulsa, Okl., for defendant-appellee GAF Corp.
Georgiana T. Hammett, Tom L. King and Jeff R. Beeler of King, Roberts & Beeler, Oklahoma City, Okl., for defendant-appellee Standard Asbestos Mfg. and Insulation Co.
Mike Barkley and Michele Ticknor Gehres of Barkley, Ernst, White, Hartman & Rodolf, Tulsa, Okl., for defendant-appellee H.B. Fuller Co.
Before SEYMOUR and MOORE, Circuit Judges, and KANE, District Judge. *
In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal.
This is an appeal from an order and judgment, both entered on June 19, 1985. The order sustained a motion for summary judgment joined in by eighteen of the twenty-one defendants who were named in the complaint. Judgment was entered in favor of the same eighteen defendants. Of the remaining three defendants named in the complaint who were not dealt with in the judgment, two of them, Johns-Manville Sales Corporation (Johns-Manville) and Unarco Industries, Inc. (Unarco), were never served with the complaint. The docket sheet of the district court reflects that the third remaining defendant Ryder Industries, Inc. (Ryder), was served with process on August 22, 1984. Subsequent to this, Ryder did not answer the complaint or join in the motion for summary judgment.
The issue presented is whether the order and judgment entered on June 19, 1985, are final in light of the fact that three of the defendants listed in the complaint are not considered in either of these documents.
The fact that Johns-Manville and Unarco were not considered in the order or judgment does not prevent the decision of the district court from being final. These unserved defendants were never made parties to this lawsuit. It was not necessary for the district court to enter an order dismissing them prior to its entry of the order and judgment. See DeTore v. Jersey City Public Employees Union, 615 F.2d 980 (3d Cir.1980); Leonhard v. United States, 633 F.2d 599 (2d Cir.1980), cert denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981).
The failure of the district court to dismiss Ryder prior to the entry of the order and judgment does prevent the decision from being final and appealable. The order and judgment specifically rule in favor of every served defendant with the exception of Ryder. As such, the order and judgment do not...
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...). "This determination must appear in the district court's order certifying the matter for appeal." Id. 3 In Bristol v. Fibreboard Corp. , 789 F.2d 846, 847 (10th Cir. 1986), the district court granted summary judgment to 18 of 21 defendants named in the complaint. Two of the remaining def......
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Adams v. C3 Pipeline Constr. Inc.
...). "This determination must appear in the district court's order certifying the matter for appeal." Id. 3 In Bristol v. Fibreboard Corp. , 789 F.2d 846, 847 (10th Cir. 1986), the district court granted summary judgment to 18 of 21 defendants named in the complaint. Two of the remaining def......
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...against ABC to make the judgment dismissing the second suit against the other defendants final and appealable. Bristol v. Fibreboard Corporation, 789 F.2d 846, 847 (10th Cir.1986); Leonhard v. United States, 633 F.2d 599, 608-09 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 ......
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Woods v. Ross Dress for Less, Inc., 19-5089
...Procedure 28(j). The responses, which are limited by the Rule to 350 words, were brief. Ms. Woods cited Bristol v. Fibreboard Corp. , 789 F.2d 846 (10th Cir. 1986) (per curiam), for the proposition that we have appellate jurisdiction so long as the district court's judgment disposes of all ......