Dowling v. City of Philadelphia
| Decision Date | 19 September 1988 |
| Docket Number | No. 87-1783,87-1783 |
| Citation | 855 F.2d 136 |
| Parties | Patricia DOWLING, Appellant, v. CITY OF PHILADELPHIA, Northeast Women's Center, Inc., and Humedco Corporation, Pro-Life Coalition of Southeastern Pennsylvania, Counterclaim Defendants. |
| Court | U.S. Court of Appeals — Third Circuit |
Theresa M. Connolly (argued), Jenkintown, Pa., for appellant, Patricia Dowling.
Richard C. McNeill, Jr. (argued), Asst. City Sol., Philadelphia, Pa., for appellee, City of Philadelphia.
Edmond A. Tiryak (argued), Philadelphia, Pa., for appellees, Northeast Women's Center and Humedco.
Charles F. Volz Jr. (argued), Philadelphia, Pa., for appellee, Prolife Coalition of Southeastern Pennsylvania.
Before SEITZ, SLOVITER and HUTCHINSON, Circuit Judges.
Patricia Dowling was arrested by Philadelphia police officers and charged with defiant trespass and criminal conspiracy while she was protesting outside of an abortion clinic in Northeast Philadelphia. After the Philadelphia Municipal Court sustained a demurrer to the criminal charges. Dowling brought a civil rights action against the abortion clinic, its parent company, and the City of Philadelphia, alleging that her arrest and detention violated her constitutional rights and constituted the basis of state law torts as well. The district court gave summary judgment for the defendants. This appeal followed.
Dowling filed her civil rights complaint on November 5, 1986 in the Court of Common Pleas against the City of Philadelphia; the Northeast Women's Center, Inc. (NEWC), outside of which Dowling was arrested; and Humedco Corporation, NEWC's parent corporation. The action was removed to federal court.
NEWC and Humedco answered Dowling's amended complaint and asserted both a counterclaim against Dowling and a third-party claim against the Pro-Life Coalition of Southeastern Pennsylvania for trespass and intentional interference with business relations. 1 On April 1, 1987, the City filed a motion for a protective order from certain discovery Dowling sought, together with affidavits of its employees. On the same day, the City filed a motion for summary judgment, relying on Dowling's deposition and a partial transcript of the criminal proceeding containing the testimony of one of the arresting officers. Dowling responded without filing any affidavits. The district court entered an order on November 25, 1987 granting summary judgment to the City, NEWC and Humedco.
On December 11, 1987, the Pro-Life Coalition filed a motion for summary judgment on NEWC's and Humedco's third-party claim. On December 17, 1987, Dowling filed her notice of appeal from the district court's November 25, 1987 order. Five days thereafter, on December 22, 1987, the district court entered an order granting the Pro-Life Coalition's motion for summary judgment on the third-party claim. Finally, on December 23, 1987 the district court dismissed the remaining claim, NEWC's and Humedco's counterclaim against Dowling.
We consider initially whether we are deprived of jurisdiction because Dowling's appeal was taken from the order granting defendants summary judgment although the counterclaim of two defendants and their third-party claim were still outstanding. The order granting summary judgment was not final because it did not dispose of all the claims between the original parties. Even had the order done so, and hence been final in the traditional sense of finality, the concept embodied in Fed.R.Civ.P. 54(b) of an action as a single judicial unit would have precluded appeal until all other outstanding claims were determined. See Shirey v. Bensalem Township, 663 F.2d 472, 474-75 (3d Cir.1981).
However, within a week from the filing of Dowling's notice of appeal, all outstanding claims were disposed of. In Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (per curiam), the Court held that a notice of appeal filed prior to the disposition of a post-trial motion made pursuant to Fed.R.Civ.P. 59 is a "nullity." We have interpreted the Supreme Court's decision as affecting only those cases involving the post-trial motions specifically enumerated in Fed.R.App.P. 4(a)(4), i.e., motions under Fed.R.Civ.P. 50(b), 52(b), and 59. See Cape May Greene, Inc. v. Warren, 698 F.2d 179, 185 (3d Cir.1983). Thus, this case does not present a Griggs situation.
This court has held that "a premature appeal taken from an order which is not final but which is followed by an order that is final may be regarded as an appeal from the final order in the absence of a showing of prejudice to the other party." Richerson v. Jones, 551 F.2d 918, 922 (3d Cir.1977) (emphasis in original). We have followed that practice even after Griggs. See Cape May Greene, 698 F.2d at 185; see also Presinzano v. Hoffman-La Roche, Inc., 726 F.2d 105 (3d Cir.1984) (); Knight v. Brown Transport Corp., 806 F.2d 479, 483-84 (3d Cir.1986) ().
Our precedent directs us to inquire whether there will be any prejudice to the appellees if we take jurisdiction from a premature notice of appeal. See Richerson v. Jones, 551 F.2d at 923. In this case the dangling claims were disposed of by the district court within a week of Dowling's notice of appeal. We see no possibility of any prejudice. Under these circumstances and pursuant to our precedent, we conclude that we may take jurisdiction notwithstanding that the notice of appeal was from an order that did not become appealable until shortly after the filing of the notice of appeal. 2
We turn next to Dowling's argument that the district court abused its discretion by granting summary judgment to defendants before she had an adequate opportunity to obtain discovery and while the motion for a protective order was outstanding. To properly assess this contention we must consider the procedural history in some detail.
Dowling's complaint alleges that defendants "knew that they were without probable cause to arrest her," App. at 130, thereby depriving Dowling of her Fifth and Fourteenth Amendment due process and equal protection rights in violation of 42 U.S.C. Sec. 1983 (1982). The complaint further alleges that Dowling's arrest and detention were part of a conspiracy motivated by anti-Catholic animus between the Philadelphia police, the District Attorney's office, NEWC and Humedco to deprive her of her constitutional rights, and that defendants' actions constituted the state law torts of malicious prosecution, false arrest, and false imprisonment.
The district court held a pretrial conference on February 24, 1987 and entered an order on March 2, 1987 which, inter alia, set May 1, 1987 as the date for completion of discovery. Defendants took Dowling's deposition on March 11, 1987, and on March 20, 1987 Dowling served defendants with a notice of depositions of eleven City employees and one employee of the corporate defendants. The City employees notice for deposition included the arresting officers, the Police Commissioner, two former Police Commissioners, the Deputy City Solicitor, and a former Deputy City Solicitor.
The City did not produce its employees for deposition. Instead, on April 1, 1987 it filed both a motion for a protective order and a motion for summary judgment. The motion for a protective order, filed on the grounds that the depositions scheduled were overbroad, oppressive and burdensome, sought a stay of Dowling's discovery "save for facts relevant to her response to Defendant's Motion for Summary Judgment." App. at 101.
Dowling stated in her answer to the City's motion for a protective order that she "must use some evidence obtained from defendants in the cours[e] of discovery to meet her burden" as part of her case in chief. App. at 124. Specifically, she stated that she needed to depose the present and former police commissioners "because Police Commissioner Tucker advised various members of the Pro-Life movement that he was merely continuing the policy of his predecessors in authorizing arrests that were similar to the plaintiff's arrest," and the present and former city solicitors because "there have been numerous references to directives from the City Solicitor to the police regarding the arrest policy of pro-life people." App. at 124. Dowling also explained that "[t]he very short period of time for discovery in this case necessitated the use of depositions rather than written interrogatories." App. at 125.
The district court entered summary judgment for defendants on November 25, 1987, without ever having ruled on the City's motion for a protective order. Dowling now complains that she was deprived an opportunity for discovery and contends that the district court abused its discretion by entering summary judgment for defendants without first ruling on the protective order motion.
The court is obliged to give a party opposing summary judgment an adequate opportunity to obtain discovery. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Costlow v. United States, 552 F.2d 560, 563-64 (3d Cir.1977). If, however, a party opposing a summary judgment motion believes that s/he needs additional time for discovery, Rule 56(f) of the Federal Rules of Civil Procedure specifies the procedure to be followed. Rule 56(f) provides:
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