Brookens v. White

• Decision Date: 11 July 1986
• Docket Number: No. 85-5765,85-5765
• Citation: 795 F.2d 178,254 U.S.App.D.C. 133
• Parties: , 5 Fed.R.Serv.3d 432 Benoit BROOKENS, Appellant v. Dawn WHITE, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 178

795 F.2d 178

254 U.S.App.D.C. 133, 5 Fed.R.Serv.3d 432

Benoit BROOKENS, Appellant v. Dawn WHITE, et al.

No. 85-5765.

United States Court of Appeals District of Columbia Circuit.

July 11, 1986.

Allen V. Farber, Washington, D.C., was on appellees', Standard Federal Savings & Loan Ass'n and Dawn White, Washington, D.C., motion to dismiss.

Dale A. Cooter and Joseph M. Cahill, Washington, D.C., were on appellee's, American Security Bank, N.A., motion to dismiss.

Benoit Brookens, The Hague A.P.O., N.Y., pro se, was on the oppositions to motions to dismiss.

ON MOTIONS TO DISMISS

Before EDWARDS, STARR and SILBERMAN, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

This case presents two unrelated procedural issues. The first concerns the sufficiency of a notice of appeal, in a multi-party action, which fails to specify an earlier grant of summary judgment as to two of the three defendants. The second issue concerns the effects of failure to file a complete record excerpt as required by D.C.Cir.Rule 9(a).

I

Benoit Brookens, the pro se appellant, is an attorney. He instituted a breach of contract action against Standard Federal Savings & Loan Association ("Standard Federal") and Dawn White in May 1983. In August 1983, American Security Bank intervened as a defendant and filed counterclaims against Brookens. On July 12, 1984, the District Court granted summary judgment on behalf of both Standard Federal and White and entered an order and judgment on the same date. ¹ In addition, the District Court granted partial summary judgment on behalf of American Security but ordered further proceedings on several counts of American Security's counterclaims. The District Court referred the damages issues to the United States Magistrate who, after conducting hearings in October 1984 and March 1985, issued a report and recommendation. The District Court adopted the recommendation and entered a final order and judgment against Brookens on May 23, 1985. On May 29, 1985, the District Court granted American Security's request for attorneys' fees.

Brookens subsequently filed a timely notice of appeal. That notice, which is pivotal to this appeal, specified the judgments of the District Court entered on the 23rd and 29th of May 1985 in favor of American Security. The notice was silent, however, as to the earlier order granting summary judgment in favor of Standard Federal and White. Brookens requested the Clerk to mail copies of the notice of appeal to counsel for American Security, Standard Federal and White.

Standard Federal and White have moved to dismiss the appeal as to them on the ground that a notice of appeal was not filed as to the July 12, 1984 order granting summary judgment in their favor. They argue that "the time for noticing an appeal with respect to that order and judgment may well have passed on August 12, 1984, which is thirty days after entry thereof on July 12, 1984. In any event, the time for noticing an appeal with respect to that Order and Judgment could not have been later than thirty days after May 29, 1985." Brookens v. White, et al., No. 85-5765, Standard Federal Savings & Loan Association and Dawn White's Motion to Dismiss at 7. Lacking the timeliness argument advanced by its co-litigants, American Security has moved to dismiss the appeal on the ground that Brookens failed to file the record excerpt required by D.C.Cir. Rule 9(a). ²

II

Standard Federal and White's first assertion, that an immediate appeal could and should have been taken from the July 12, 1984 order, is without merit. It is elementary that a grant of summary judgment as to some parties in a multi-party litigation does not constitute a final order unless the requirements of Fed.R.Civ.P. 54(b) are met. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 3, 100 S.Ct. 1460, 1462, 64 L.Ed.2d 1 (1980) (in multi-party suit summary judgment adjudicating claims or rights and liabilities of fewer than all the parties is not appealable in absence of a Rule 54(b) certification); In re Yarn Processing Patent Validity Litigation, 680 F.2d 1338, 1339 (11th Cir.1982) (same); Melancon v. Insurance Co. of North America, 476 F.2d 594, 595 (5th Cir.1973) (same). Rule 54(b) requires the District Court to make an express determination that there is no just reason for delay and to expressly direct the entry of judgment. The District Court did neither in its July 12, 1984 order. ³

However, we are persuaded by Standard Federal and White's contention that Brookens' failure to specify the July 12, 1984 order by name in his notice of appeal, or otherwise to evidence his intent to pursue an appeal from that order, renders the notice inapplicable to the earlier order. Federal Rule of Appellate Procedure 3(c) expressly requires that the notice of appeal "designate the judgment, order or part thereof appealed from." Several circuits have held that if an appeal is noticed only from part of a judgment, then no jurisdiction exists to review other portions of the judgment. See, e.g., Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1374-75 (11th Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 230 (1983); C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.), cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir.1977) (per curiam). We agree with that proposition, inasmuch as it is faithful to the text of Fed.R.App.P. 3(c); in addition, its application promotes the orderly administration of justice.

We are by no means suggesting that any technical defects in the notice of appeal will warrant dismissal. The Supreme Court has emphasized that harmless error in the notice of appeal is insufficient to justify dismissal. See, e.g., Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); State Farm Mutual Automobile Insurance Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956) (per curiam); United States v. Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. 405 (1953) (per curiam). See also McLaurin v. Fischer, 768 F.2d 98, 102 (6th Cir.1985) (no prejudice); Duran v. Elrod, 713 F.2d 292, 295 (7th Cir.1983) (no prejudice because merits of all issues were argued by both sides on appeal), cert. denied, 465 U.S. 1108, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984). Over the years, the following approach has been developed to guide courts in addressing such situations:

The rule is now well settled that a mistake in designating the judgment or in designating the part appealed from if only a part is designated should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.

9 J. Moore & B. Ward, MOORE'S FEDERAL PRACTICE Sec. 203.18 (2d ed. 1985) (footnotes omitted). See also Gooding v. Warner-Lambert Co., 744 F.2d 354, 357 n. 4 (3d Cir.1985); Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1059 n. 1 (5th Cir.1981); Gunther v. E.I. DuPont de Nemours & Co., 255 F.2d 710, 717 (4th Cir.1958).

Applying this approach to the present case, the questions before us are whether an intent to appeal the July 12, 1984 order can be inferred from appellant's submissions and whether appellees were misled by the notice of appeal. Upon analysis of the pertinent records, we are persuaded that no intent to appeal the July 12, 1984 order can fairly be inferred from appellant's notice of appeal and subsequent filings. The notice, as we have seen, specified only the final order of the District Court dealing with American Security's counterclaim and the District Court's subsequent ruling on American Security's request for attorneys' fees. Although these orders mention the July 12, 1984 Memorandum and Order in passing, it is clear that the orders pertain exclusively to American Security. In addition the docketing statement filed by Brookens specified only the final order of the District Court and the two hearings before the U.S. Magistrate, all of which related solely to American Security's counterclaim. Taken together, the specification of these orders and hearing dates and the failure to mention the July 12, 1984 order in either the notice of appeal or the docketing statement indicate an intent not to appeal the earlier grant of summary judgment. ⁴

Appellees were understandably misled by appellant's filings. Appellees received a copy of the notice of appeal which specified only the...