Gonzalez-Vega v. Hernandez-Colon, GONZALEZ-VEGA

• Citation: 866 F.2d 519
• Decision Date: 12 January 1989
• Docket Number: No. 88-1484,GONZALEZ-VEGA,HERNANDEZ-COLON,88-1484
• Parties: Alfredo, et al., Plaintiffs, Appellants, v. Hon. Rafael, etc., et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 519

866 F.2d 519

13 Fed.R.Serv.3d 285

Alfredo GONZALEZ-VEGA, et al., Plaintiffs, Appellants, v. Hon. Rafael HERNANDEZ-COLON, etc., et al., Defendants, Appellees.

No. 88-1484.

United States Court of Appeals First Circuit.

Heard Jan. 12, 1989.

Decided Feb. 2, 1989.

Ivonne Gonzalez Morales with whom Frank Rodriguez Garcia was on brief, for plaintiffs-appellants.

Jose A. Andreu Garcia with whom Hon. Hector Rivera Cruz, Secretary of Justice, Hon. Rafael Ortiz Carrion, Atty. Gen., and Andreu Garcia & Andreu Garcia were on brief, for defendants-appellees.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and PETTINE, ^* Senior District Judge.

PER CURIAM.

Federal Rule of Appellate Procedure 3(c) mandates that a notice of appeal "shall specify the party or parties taking the appeal." The Supreme Court has explained that this specificity about who is appealing is a jurisdictional requirement. Torres v. Oakland Scavenger Co., --- U.S. ----, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988). Thus, a court of appeals lacks the power to entertain an appeal from a party who is not specified in the notice of appeal.

In this case, the notice of appeal was captioned,

ALFREDO GONZALEZ VEGA, et al.

Plaintiffs

The text of the notice included the following:

COME NOW plaintiffs Alfredo Gonzalez, et al. hereby appeals [sic] to the United States Court of Appeals for the First Circuit from the Opinion and Order issued by U.S. District Court for the District of Puerto Rico dismissing the complaint. ¹

Hence only plaintiff Alfredo Gonzalez Vega was named specifically as appealing. There were, however, 144 original plaintiffs, including Gonzalez, in the district court proceedings; the district court had ordered dismissal of the complaint as to all of them. Counsel for plaintiffs now tells us that all 144 plaintiffs were appealing, as indicated by the phrase "et al." in the notice of appeal. The Supreme Court held in Torres, however, that "et al." does not suffice to indicate that any specific individual or individuals are appealing:

The purpose of the specificity requirement of Rule 3(c) is to provide notice both to the opposition and to the court of the identity of the appellant or appellants. The use of the phrase "et al.," which literally means "and others," utterly fails to provide such notice to either intended recipient. Permitting such vague designation would leave the appellee and the court unable to determine with certitude whether a losing party not named in the notice of appeal should be bound by an adverse judgment or held liable for costs or sanctions.

Torres, 108 S.Ct. at 2409.

Plaintiffs attempt to distinguish their case from Torres. They argue that in this case, unlike Torres, there is no possible confusion about who is appealing. They point out that each of the 144 plaintiffs was identified by name in the amended complaint, which was transmitted to this court with the record of the case. But while this may be so, the problem remains that the phrase "et al." in the notice of appeal did not make it clear in that document that all of the 143 plaintiffs besides Gonzalez Vega were appealing. That wording might just as well have meant that some but not all of the original plaintiffs were appealing. As defendants point out, the showing made below in the summary judgment proceedings was weak or nonexistent as to some plaintiffs' claims, making it all the more conceivable that fewer than all plaintiffs had decided to appeal. In any event, the prescribed specificity as to the appealing parties was lacking. Although we are now advised by counsel that all plaintiffs desired to appeal, this unfortunately cannot save their appeal. As we recently stated,

It does not suffice that the actual appellants are now known and that no harm may have been done by reason of the insufficient notice of appeal. Because Rule 3(c) is jurisdictional, the Supreme Court has stated that "harmless error" analysis is inapplicable to a defect in the notice of appeal: "a litigant's failure to clear a jurisdictional hurdle can never be 'harmless' or waived by a court." Torres, 108 S.Ct. at 2409 n. 3. See also Hays v. Sony Corp. of America, 847 F.2d 412, 420 [ (7th Cir.1988) ] (noting that under Torres the failure to name an appellant in a notice of appeal necessitates dismissal of an appeal, even if the appellee was not misled).

Santos-Martinez v. Soto-Santiago, 863 F.2d 174, 177 (1st Cir.1988). InSantos-Martinez, at 177, we ruled that Torres...