Gialde v. Time, Inc., 72-1776

• Decision Date: 20 June 1973
• Docket Number: No. 72-1776,73-1030.,72-1776
• Parties: Tom J. GIALDE, Appellee, v. TIME, INC., Appellant. TIME, INC., Petitioner, v. Honorable John W. OLIVER, Judge of the United States District Court for the Western District of Missouri, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

480 F.2d 1295 (1973)

Tom J. GIALDE, Appellee, v. TIME, INC., Appellant.

TIME, INC., Petitioner, v. Honorable John W. OLIVER, Judge of the United States District Court for the Western District of Missouri, Respondent.

Nos. 72-1776, 73-1030.

United States Court of Appeals, Eighth Circuit.

Submitted March 14, 1973.

Decided June 20, 1973.

COPYRIGHT MATERIAL OMITTED

Harold R. Medina, Jr., Cravath, Swaine & Moore, New York City, for Time, Inc.

Joseph Schlozman, Schlozman & DeFeo, Kansas City, Mo., for Gialde.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge and VAN SICKLE, District Judge.^*

VAN OOSTERHOUT, Senior Circuit Judge.

This is an action by plaintiff Tom J. Gialde against Time, Inc., for actual and punitive damages based upon an article and photograph which appeared in the June 12, 1970, issue of Life Magazine published by Time showing plaintiff as a member of a golfing group at Ocean Springs, Mississippi. The article, which was published with the photograph, referred without naming plaintiff to eighteen individuals pictured therein as "four of Kansas City's leading Mafiosi and their golfing associates."

Plaintiff's action is based upon invasion of his right of privacy both on a "false light" and "disclosure of private facts" theory. In a separate count, liability is predicated on libel.

This appeal is from an order of the trial court dated November 29, 1972, which overruled Time's motion for summary judgment and granted plaintiff's motion to compel Denny Walsh, a Life investigator, to disclose the source of his information verifying the truth of certain portions of the published article. The order in pertinent part reads:

"Ordered that defendant\'s motion for summary judgment should be and the same is hereby denied. It is further

"Ordered that plaintiffs\' motion to compel answers should be and the same is hereby granted. It is further

"Ordered that within ten (10) days, the parties prepare, serve, and file their respective suggestions in regard to:

(a) Why both of the above entitled causes should not be consolidated for trial pursuant to Rule 42(a); and

(b) Assuming that consolidation is proper, what additional discovery, if any, either party desires before the consolidated cases be set for trial. The parties shall confer and advise each other as to their views concerning the completion of the deposition of Denny Walsh. It is further

"Ordered that the Court has fully considered the question frequently discussed at various pretrial conferences as to whether a certification should be made to the Court of Appeals pursuant to Section 1292(b), Title 28, United States Code of the questions presented by the pending motions.

"We have concluded that such certification would not be proper under the circumstances of this case. We simply are unable to convince ourselves that an immediate appeal would materially advance the ultimate termination of this litigation. The ultimate termination of this litigation, in our judgment, will be advanced most rapidly by a consolidated trial on the merits of both cases."¹

Notice of appeal from such order, served and filed on December 7, 1972, reads:

"Notice is hereby given that defendant hereby appeals pursuant to Section 1291 of Title 28 of the United States Code to the United States Court of Appeals for the Eighth Circuit from the decision and order of this Court filed and entered in this action on November 20, 1972, which decision and order required answers by defendant and by Denny Walsh identifying the person who supplied information to Walsh for use in connection with the preparation and publication of the article with respect to which this action has been instituted, denied defendant\'s motion for summary judgment, and denied defendant\'s application for certification pursuant to Section 1292(b) of Title 28 of the United States Code."

Plaintiff filed motion to dismiss the appeal for lack of jurisdiction on January 9, 1973, with supporting memorandum. Such motion to dismiss is resisted by defendant.

Defendant on January 9, 1973, filed petition for writ of mandamus pursuant to 28 U.S.C. § 1651 and Rule 21, F.R.A.P. In substance, defendant seeks an order requiring the trial court to vacate its opinion and order of November 20, 1972, and to grant defendant's motion for summary judgment. Defendant states that its petition is filed as an alternate to its appeal and that if this court determines that it has no jurisdiction to entertain the appeal, it grant defendant relief on its petition for writ for the reasons urged in its brief on appeal.

This court by order filed January 17, 1973, consolidated the mandamus action, No. 73-1030, with case No. 72-1776 pending on appeal; ordered that the motion to dismiss the appeal in No. 72-1776 for lack of jurisdiction be submitted with the appeal on the merits, and further ordered that pursuant to Rule 21, F.R.A.P., respondent Honorable John W. Oliver file answer to the mandamus petition and supporting brief by February 12, 1973, and for service of the mandamus petition and the order thereon.

Plaintiff Gialde filed answer to the petition denying defendant was entitled to the relief sought. The appeal in case No. 72-1776, the motion to dismiss the appeal and the petition for a writ in case No. 73-1030 were all pursuant to prior order argued and submitted on March 14, 1973.

The threshold issue for our determination of defendant's appeal in case No. 72-1776 is whether this court has appellate jurisdiction to consider the appeal. We dismiss the appeal in No. 72-1776 for lack of appellate jurisdiction.

Courts of appeal have only such jurisdiction as is conferred upon them by Congress. Twenty-eight U.S.C. § 1291 is the statute governing this appeal and appeals generally. Transportation-Com. Div. v. St. Louis-San Francisco Ry., 419 F.2d 933 (8th Cir. 1969); Bohms v. Gardner, 381 F.2d 283, 285 (8th Cir. 1967); Pauls v. Secretary of Air Force, 457 F.2d 294, 297-298 (1st Cir. 1972).

Certain exceptions exist such as those found in 28 U.S.C. § 1292 and Rule 54(b), Fed.R.Civ.P., none of which are here applicable.

Section 1291 gives Courts of Appeal jurisdiction of "appeals from all final decisions of the district courts of the United States." A final decision generally is one which ends litigation and leaves nothing for the court to do but execute the judgment. Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); Bohms v. Gardner, supra.

It is entirely clear that the order here appealed from does not terminate the litigation. The portion of the order denying summary judgment does not end the litigation. It leaves the validity of plaintiff's claim open for trial on the merits, leaving open an appropriate motion for a directed verdict or other relief. Defendant has cited no case which supports its view that an order denying summary judgment is appealable. We have found no such case. There are, however, many cases holding an order denying summary judgment is not a final order and hence not appealable, including the following: Refrigerated Food Line, Inc. v. Republic Industries, Inc., 449 F.2d 756 (8th Cir. 1971); Upper Mississippi Towing Corp. v. West, 338 F.2d 823, 825 (8th Cir. 1964); Alexander v. Pacific Maritime Ass'n, 332 F.2d 266, 268 (9th Cir. 1964); Chappell & Co. v. Frankel, 367 F.2d 197, 199 (2d Cir. 1966).

The order also sustains plaintiff's motion to compel Time employee Walsh to answer certain questions. The motion sets out the questions plaintiff desires to have Walsh answer. Walsh by affidavit and deposition taken in New York where he apparently resides states that he obtained corroboration of the information (obtained by Time from another source) that four named parties shown in the picture were Kansas City Mafia members and that others were associates from an unnamed "federal enforcement man" located at Kansas City, Missouri. Walsh refused to answer questions as to the name of the informer or the government department which employed the informer. Such refusal was based upon a claim that the information was given to him as a reporter in confidence and that the naming of the informer would subject the informer to reprisal by his superiors and likewise subject the informer to reprisal by the parties pictured in the photograph. The trial court order heretofore set out is general and imposes no sanctions or penalties upon Walsh or his employer Time. The order is preliminary, not a final order.

Plaintiff in his brief in support of his motion to dismiss the appeal states that he is unable to locate Walsh for further testimony and that there is a difference of opinion between counsel whether an agreement existed between counsel that Walsh would submit to further questioning if the court ruled he should answer the questions which he refused to answer. A serious question exists under the incomplete record before us whether Walsh as an individual is under any legal obligation to submit to further questioning.²

The general rule appears to be that a preliminary order such as here involved is not a final appealable order. Duffy v. Dier, 465 F.2d 416 (8th Cir. 1972); Childs v. Kaplan, 467 F.2d 628 (8th Cir. 1972); United States v. Anderson, 150 U.S.App.D.C. 336, 464 F.2d 1390 (1972); United States v. Ryan, 402 U.S. 530, 532, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed.2d 783 (1971); Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906); Pauls v. Secretary of Air Force, 457 F.2d 294 (1st Cir. 1972); Borden Co. v. Sylk, 410 F.2d 843 (3d Cir. 1969); 9 Moore's Federal Practice ¶ 110.13 2.

While the Supreme Court cases just cited involve criminal proceedings, we note that § 1291 covers civil as well as criminal cases. We see no reason why the statute as finality should receive a different interpretation in civil cases than in criminal cases. See Childs v. Kaplan, supra.

The discovery order here appealed from...