Frank Briscoe Co., Inc. v. Morrison-Knudsen Co., Inc.
| Decision Date | 21 November 1985 |
| Docket Number | MORRISON-KNUDSEN,No. 84-2451,84-2451 |
| Citation | 776 F.2d 1414 |
| Parties | FRANK BRISCOE COMPANY, INC., a corporation, Plaintiff-Appellant, v.COMPANY, INC., a corporation, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James J. Jimmerson, James J. Jimmerson & Associates, Morton R. Galane, Las Vegas, Nev., Louis Pepe, Pepe & Hazard, Hartford, Conn., for plaintiff-appellant.
Will Kemp, Las Vegas, Nev., Richard Seabolt, Hancock, Rothert & Bunshoft, San Francisco, Cal., Roger Erickson, Erickson, Thorpe, Swainston & Cobb, Ltd., Reno, Nev., H. James Wulfsberg, Lempres & Wulfsberg, Oakland, Cal., for defendants-appellees.
Appeal from the United States District Court for the District of Nevada.
Before DUNIWAY, HALL, and WIGGINS, Circuit Judges.
I. Procedural Background.
Frank Briscoe Company, Inc. (Briscoe) was the general contractor on the construction of an Advanced Wastewater Treatment Plant in Clark County, Nevada. Briscoe filed this action in the United States District Court for the District of Nevada, for breach of contract and tort against the owner of the project, Clark County Sanitation District Number 1 (District), and against the engineer, URS Company, Inc. (URS), the construction manager, Morrison-Knudsen Co., Inc. (M-K), and the interim engineer, H.K. Ferguson Company (Ferguson).
On November 19, 1982, M-K and Ferguson moved to dismiss the negligence allegations in Briscoe's complaint which applied to them. On August 5, 1983, appellee URS also moved to dismiss applicable negligence allegations. In a minute order entered March 20, 1984, the district court granted both motions to dismiss and granted Briscoe leave to file an amended complaint.
Briscoe filed an amended complaint on April 2, 1984. On April 12, 1984, M-K and Ferguson moved to dismiss the negligence allegations made against them in the amended complaint. On April 16, 1984, URS also moved to dismiss the amended complaint's applicable negligence allegations.
On April 19, M-K and Ferguson filed a motion to certify, under Fed.R.Civ.P. 54(b), the March 20, 1984 order granting their November 19, 1982 motion to dismiss the negligence claims in Briscoe's original complaint. On April 20, URS filed a motion for 54(b) certification of the March 20, 1984 order granting its August 5, 1983 motion to dismiss.
In a minute order entered August 16, 1984, the district court granted the April 12 and 16, 1984 motions to dismiss Briscoe's amended complaint filed on behalf of M-K and Ferguson and on behalf of URS. The district court order also stated:
6. The Motion for 54(b) Certification (# 722), filed April 19, 1984, on behalf of Defendants Morrison-Knudsen Company, Inc. and H.K. Ferguson Company, is granted.
7. The Motion for Entry of Final Judgment pursuant to Rule 54(b) of the FRCP (# 725), filed April 20, 1984, on behalf of Defendant URS Company, Inc., is granted.
The district court made no other Rule 54(b) determination.
Briscoe appeals from the district court's March 20, 1984 order granting M-K, Ferguson, and URS's motions to dismiss the original complaint, and from the court's August 17, 1984 order granting appellees' motions to dismiss the amended complaint and granting appellees' motions for 54(b) certification.
II. Jurisdiction.
Fed.R.Civ.P. 54(b) states:
When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties....
The district court orders granting appellees' motions to dismiss in this case did not dispose of Briscoe's independent claims against the District (Amended Complaint Counts 1-8)...
To continue reading
Request your trial
-
Frank Briscoe Co., Inc. v. Travelers Indem. Co.
...The Las Vegas claim arose from a Wastewater Treatment Plant construction project that Briscoe performed in Nevada. See 776 F.2d 1414, 1415 (9th Cir.1985). Briscoe asserted various claims against several defendants, including various county agencies in Clark County, Nevada. Id. Briscoe sough......
-
McGuckin v. Smith
...jurisdiction with respect to any defendant would not exist unless the dismissal was final to all. See Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.1985); Bullock v. Baptist Memorial Hosp., 817 F.2d 58, 59 (8th Cir.1987); Brookens v. White, 795 F.2d 178, 179-80 (D.......
-
Roundtree v. New Orleans Aviation Bd.
...pursuant to ... Rule 54b.") Also cf., Alexander v. Chicago Park Dist., 773 F.2d 850, 855 (7th Cir.1985) to Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414 (9th Cir.1985). It appears to me that the Fifth Circuit's interpretation is not the ultimate expression of a correct interpreta......
-
Brady v. Otton, Case No. 15-cv-00757-WHO
...order, see, e.g., Kersh v. Gen. Council of Assemblies of God, 804 F.2d 546, 547 n.1 (9th Cir. 1986); Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1415-16 (9th Cir. 1985); Rheumatology Diagnostics Lab., Inc. v. Aetna, Inc., No. 12-cv-05847-WHO, 2014 WL 2586339, at *1-2 (N.D. Cal......