Caperton v. Beatrice Pocahontas Coal Co., s. 77-1357

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation585 F.2d 683
Docket NumberNos. 77-1357,s. 77-1357
PartiesGladys CAPERTON as representative of a class of property owners having more than $10,000 damage living in Buchanan County, Virginia, in the areas adjacent to the Beatrice & Virginia Pocahontas Shaft Mines Numbers 1-5 which damage is alleged to exist and have been caused by the mining operations of the defendants, Appellant, v. BEATRICE POCAHONTAS COAL COMPANY and/or Virginia Pocahontas Coal Company and/or Island Creek Coal Company, Jones & Laughlin Steel Company, Republic Steel Corporation, Appellees. Harold T. POWERS and Kathy Jo Powers, his wife, Appellants, v. BEATRICE POCAHONTAS COMPANY, Jones & Laughlin Steel Company, Republic Steel Corporation, Appellees. Harry FERRELL and Florene P. Ferrell, Appellants, v. BEATRICE POCAHONTAS COMPANY and/or Virginia Pocahontas Company, and/or Island Creek Coal Company, Jones & Laughlin Steel Company, Republic Steel Corporation, Appellees. Ira Cunningham MUTTER, Appellant, v. BEATRICE POCAHONTAS COMPANY and/or Virginia Pocahontas Company and/or Island Creek Coal Company, Jones & Laughlin Steel Company, Republic Steel Corporation, Appellees. to 77-1360.
Decision Date19 October 1978

S. Strother Smith, Abingdon, Va. (Smith, Robinson & Vinyard, Abingdon, Va., on brief), for appellants.

Haney H. Bell, Roanoke, Va., Charles B. Flannagan, II, Abingdon, Va. (Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., Woodward, Miles & Flannagan, Bristol, Va., and Penn, Stuart, Eskridge & Jones, Abingdon, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, FIELD, Senior Circuit Judge, and WIDENER, Circuit Judge.

FIELD, Senior Circuit Judge:

Four actions for damages were filed in the district court against Beatrice Pocahontas Coal Company ("Beatrice"), Virginia Pocahontas Coal Company ("Virginia Pocahontas"), and one of their common corporate "parents," Island Creek Coal Company ("Island Creek"), 1 by Virginia citizens who claimed to have been injured by seismic tremors emanating from the mining operations of Beatrice and Virginia Pocahontas. The cases were consolidated for the purpose of ruling on a motion to dismiss for lack of diversity jurisdiction. Because all three defendants were incorporated outside Virginia, and since it was agreed that Island Creek was not a citizen of Virginia within the meaning of the diversity statute, 2 an April, 1976, evidentiary hearing upon the motion was directed primarily to the issue of whether the State of Virginia was the principal place of business of either Beatrice or Virginia Pocahontas. 3 After the hearing, but before the motion was decided, the plaintiffs were permitted to amend their pleadings to add as parties defendant the Republic Steel Corporation and the Jones & Laughlin Steel Company on the ground that, like Island Creek, these corporations were part owners of Beatrice and Virginia Pocahontas and might also be liable for damages. 4

By an "Opinion and Order" dated September 29, 1976, the cases were dismissed for "lack of subject matter jurisdiction." 5 The district court ruled that Beatrice and Virginia Pocahontas had their principal places of business in Virginia, and that consequently the requisite diversity of citizenship between the adversary parties did not exist. Assessing principally the relationship between both companies and Island Creek, the court found Beatrice and Virginia Pocahontas to be discrete corporate entities for jurisdictional purposes and rejected the plaintiffs' suggestion that it "pierce their corporate veils" for the purpose of attributing to them the allegedly foreign citizenship of "their parent corporations."

On October 3, 1976, plaintiffs served the defendants with a "Petition for Relief From Mistake in Judgment." Invoking the "terms and conditions of Rule 60(b)(1)(2)," the motion asked the court to amend the September 29 order to dismiss only Beatrice and Virginia Pocahontas for lack of diversity, retaining Island Creek, Republic Steel Corporation, and Jones & Laughlin Steel Company as parties defendant. The justification advanced for the request was that "apparently the Court neglected to remember" that it had earlier allowed the addition of Republic Steel and Jones & Laughlin as defendants; that in view of the "ultra (Sic ) ego concept" of the relationship between Beatrice and Virginia Pocahontas, on the one hand, and Republic Steel, Jones & Laughlin, and Island Creek on the other, Beatrice and Virginia Pocahontas were not "essential parties" to the action; and that the case should thus continue as to the three "parent" defendants, none of whom are Virginia citizens. The petition was denied without comment by order of December 9, 1976.

By motion filed more than thirty days later on January 17, 1977, plaintiffs asked the district judge to extend the time for filing notices of appeal to this court. The extension was granted "for a period of 20 days from January 9, 1977," and on January 26, appeals were filed in all four cases (1) "as to the question of the jurisdiction of the United States District Court upon diversity," and (2) "upon (the) Order in the Petition for Relief From Mistake in Judgment." The defendants thereafter moved this court to dismiss the appeals on the ground that they were not filed in accordance with Rule 4(a) of the Federal Rules of Appellate Procedure. For the reasons which follow, we deny the motion to dismiss but affirm the orders from which the appeals were taken.

THE MOTION TO DISMISS THE APPEALS

The defendants challenge the right of the plaintiffs to appeal from the September judgment of dismissal for lack of subject matter jurisdiction, as well as from the December order denying the "Petition for Relief From Mistake in Judgment."

As to the September judgment, the defendants argue that the plaintiffs waited too long to file notices of appeal to this court, and that we therefore lack jurisdiction to review the district court's conclusion that Beatrice and Virginia Pocahontas are citizens of Virginia for diversity purposes. 6 To the extent that this argument is based upon Rule 4(a) of the Federal Rules of Appellate Procedure, the plaintiffs acknowledge its validity. They agree with the defendants that the order of dismissal was entered in the court below on September 29, 1976, and concede that in order to perfect an appeal from the judgment under the standards imposed by Rule 4(a), either the notices of appeal should have been filed several months earlier, or the "Petition for Relief From Mistake in Judgment" should have been filed one day sooner. 7 The only response offered by the plaintiffs in opposition to the motion is that in order to avoid an "unduly harsh" result, and pursuant to Rule 2, Fed.R.App.P. (Suspension of Rules ), we should remove the only obstacle to appellate review by excusing their failure to comply with Rule 4(a). This suggestion is totally lacking in merit since we have no such power under Rule 2. See Rules 2 and 26(b), Fed.R.App.P.

With respect to the December denial of the "Petition for Relief From Mistake in Judgment," the defendants concede its appealable nature, but argue that, absent notice to them in advance, the district court had no authority under Rule 4(a) to grant the extension of time during which the notices of appeal from the order were filed. 8 Plaintiffs reply that Rule 4(a) required only such notice to the defendants as the court deemed appropriate, and that receipt by the defendants of a copy of the plaintiffs' motion for an extension of time constituted sufficient notice. 9

On a basis brought to our attention by none of the parties, we conclude that the motion to dismiss the appeals for untimeliness must be denied. By our decision on this point, it should not be inferred that we condone the plaintiffs' apparent disregard for common precepts of appellate procedure, nor should our opinion be read to countenance the delay of 119 days between the September dismissals and the filing of notices of appeal on January 26th. In an ordinary case we would dismiss, without the slightest hesitation, an appeal prosecuted in such a dilatory fashion. The appellants survive the dismissal motion only because the grounds assigned by the defendants rest upon a pivotal assumption which is not supported by the record.

In their briefs and oral arguments, the plaintiffs and the defendants have repeatedly asserted that the order of dismissal for lack of jurisdiction was "entered" in the district court on September 29, 1976. Precise identification of the date on which an order or judgment was entered is necessary whenever the timeliness of an appeal to this court is in issue, since the time for filing a notice of appeal under Rule 4(a) begins to run only upon "entry" of a judgment order 10 and, absent such an entry, a party will not ordinarily be found to have exceeded any of the time periods set forth in the Rule, regardless of when the notice of appeal was filed. 11 "Entry" has a well defined meaning under the rules; it occurs only when the essentials of a judgment or order are set forth in a written document separate from the court's opinion or memorandum And when the substance of this separate document is reflected in an appropriate notation on the docket sheet assigned to the action in the district court. This dual requirement is established by Civil Rule 58, Entry of Judgment, which states that "(e)very judgment shall be set forth on a separate document" 12 and that "(a) judgment is effective only when so set forth and when entered as provided in Rule 79(a)." 13 Rule 4(a), which is derived without change in substance from a former civil rule, 14 incorporates both of these standards. 15

The record in these cases reveals that the dismissals for lack of jurisdiction were never "entered" within the definitive meaning of that term. Contrary to the assertions of the parties, September 29, 1976, is the date on which the opinion...

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