In re Forstner Chain Corporation

• Citation: 177 F.2d 572
• Decision Date: 10 November 1949
• Docket Number: No. 4421. Orig,4425.,4421. Orig
• Parties: In re FORSTNER CHAIN CORPORATION, Petitioner. FORSTNER CHAIN CORPORATION v. MARVEL JEWELRY MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

177 F.2d 572 (1949)

In re FORSTNER CHAIN CORPORATION, Petitioner.

FORSTNER CHAIN CORPORATION v. MARVEL JEWELRY MFG. CO.

Nos. 4421. Orig, 4425.

United States Court of Appeals First Circuit.

November 10, 1949.

COPYRIGHT MATERIAL OMITTED

Nathaniel Frucht, Providence, R. I., for petitioner, appellant.

James J. Corrigan, Providence, R. I., for intervenor, appellee.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CLIFFORD, District Judge.

MAGRUDER, Chief Judge.

No. 4425 presents an unusual situation. The appeal is from a ruling or order denying a motion to enter final judgment dismissing a complaint in a patent suit, this motion having been made by the losing plaintiff, Forstner Chain Corporation, on the theory that the granting of such motion was a prerequisite to the taking of an appeal. At first blush, an order of this sort might seem not to be a "final decision" appealable under 28 U.S.C.A. § 1291. Under the special circumstances, which we shall summarize below, we hold that the order is a "final decision". However, on the merits, we have concluded that the appeal must fail.

In No. 4421 Original, Forstner Chain Corporation sought as a cautionary measure to bring the same question to us by another procedural road, namely, a petition for a writ of mandamus directed to the district judge. We granted leave to file the petition and directed respondent to show cause why a writ of mandamus should not issue requiring respondent to order entry of a final judgment in the aforementioned patent suit. Respondent filed his return, showing cause. Marvel Jewelry Mfg. Company, defendant in the patent suit, and appellee in No. 4425, obtained leave to intervene in the mandamus proceedings and filed an answer to the petition. We shall dismiss the petition for a writ of mandamus, in view of our conclusion that the remedy of appeal is available to petitioner and has been properly availed of in No. 4425.

The complaint in the patent suit filed June 9, 1947, by Forstner Chain Corporation sought relief by way of injunction and an accounting for infringement of U.S. Letters Patent No. 2,401,297. In reply to defendant's motion for further particulars, plaintiff stated that its reliance was upon Claim 1 of the patent as being infringed by a certain described bracelet manufactured and sold by defendant. On February 1, 1949, the district judge filed in the office of the clerk a document entitled "Opinion", reaching the conclusion that Claim 1 of the patent was invalid for lack of invention. At the very end of this "Opinion" appeared the following language: "Judgment may be entered for the defendant for costs." D.C., 82 F.Supp. 243, 248. No separate formal document labeled "Judgment" or "Final Decree" was prepared and filed either by the district judge or by the clerk. However, under date of February 1, 1949, the clerk made the following notation at the appropriate place in his civil docket: "Opinion filed. (Copy given to Nathaniel Frucht, Esq. and James J. Corrigan, Esq.) Judgment entered for the defendant for costs. (Notice of entry of said judgment mailed to Nathaniel Frucht, Esq. and James J. Corrigan, Esq.)"

A deputy in the office of the clerk testified that on February 1, 1949, he mailed notices to the attorneys for both parties reading: "In accordance with Rule 77(d) of the Federal Rules of Civil Procedure you are hereby notified that judgment has been entered in the above entitled cause. Neale D. Murphy, Clerk"; and that neither of said notices had come back to the clerk's office undelivered. It appears that the attorney for the defendant received such notice; but the attorney for the plaintiff testified that the notice was not received by him either through the mail or otherwise. However, it is provided in Rule 77(d), 28 U.S.C.A., that mailing of such notice by the clerk "is sufficient notice for all purposes for which notice of the entry of an order is required by these rules". And further: "Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73(a)." The latter rule provides that "the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from * * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed." Such a motion for a 30-day extension was made by plaintiff, and denied by the district judge on the ground that there had been "no showing of excusable negligence based on failure of plaintiff learning of judgment." The denial of this motion is not before us for review; nor are we, for present purposes, concerned with whether plaintiff's counsel actually received the notice of entry of judgment or not.

On March 17, 1949, plaintiff filed a motion "that the Court approve the attached final Decree." This proposed final decree, after the usual preliminary recitals, ordered, adjudged and decreed that "Claim 1 of U. S. Letters Patent No. 2,401,297 is invalid"; that "The complaint is dismissed"; and that "Costs be awarded to the defendant." After hearing on this motion, the court on March 21, 1949, denied the same, on the ground that final judgment in the case had already been duly entered on February 1, 1949, and that the time for taking an appeal had expired.

The present appeal is from the order of the district court denying plaintiff's aforesaid motion to enter final judgment.

There is first the question whether the order appealed from is a "final decision" within 28 U.S.C.A. § 1291. The requirement of finality, as embodied in that section, is based upon a strong general policy against allowing piecemeal appeals. But here, from the point of view of the district judge he had already finally disposed of the case, and the motion to enter final judgment called upon him to do a superfluous and meaningless act. His denial of the motion had the element of finality, because he was through with the case and did not, after denying the motion, reserve jurisdiction for the purpose of adjudicating further questions yet undetermined. If the present appeal is entertained by us, it will not be of the piecemeal variety, with the prospect of subsequent appeals from orders or judgments issued by the court below at later stages in the proceeding. This is certainly true, if we should affirm the order on the merits. If we should reverse the order, accepting appellant's view that no final judgment in the patent suit has been rendered or entered, then the case would have to be remanded for entry of such final judgment, and no doubt would come back to us on appeal therefrom. The latter consideration has given us some pause, for, on appellant's premise that the district judge has not completed final action in the patent case, does it not logically follow that the order appealed from necessarily is interlocutory? But upon the whole it seems more sensible to test the finality by what the district judge thought he was doing. In the order now appealed from he made what he must have regarded as the proper disposition of the plaintiff's motion, and in that view there were no further proceedings in the case to be had before him. If he should be told on appeal that his order denying the motion was erroneous, and upon reversal and remand should find the case back in his lap for further proceedings, that is no more than happens in any case of a final judgment which is upset on appeal — it was "final" enough to be appealed from, but like the "permanent" wave, it lasted only six months. We have had that experience with final judgments of our own which were reversed by the Supreme Court.

In respect of finality, the order appealed from is not unlike an order denying a motion under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C.A., for correction of an allegedly illegal sentence, a type of order which we held appealable, as a "final decision", in Ekberg v. United States, 1 Cir., 1948, 167 F.2d 380. It is also not unlike the order we held appealable in Parker v. United States, 1 Cir., 1946, 153 F.2d 66, 69, 163 A.L.R. 379.

For the foregoing reasons, we think we have jurisdiction in the present case, and we proceed to consider the merits.

Appeals may be taken under 28 U.S.C.A. § 1291 only from "final decisions". The word "decision" is equivalent to "judgment", broadly defined in Rule 54(a) as including "a decree and any order from which an appeal lies." Ex parte Tiffany, 1920, 252 U.S. 32, 36, 40 S.Ct. 239, 64 L.Ed. 443. Appeal may not be taken from an opinion as such; nor even from a judgment, until it is "entered", for Rule 58 provides that "the judgment is not effective before such entry", and under the presently applicable provision of Rule 73(a), "the time within which an appeal may be taken shall be 30 days from the entry of the judgment appealed from". What is meant by "entry" of the judgment is stated in Rule 58: "The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment". The provision of Rule 79(a) thus referred to requires the clerk to make a notation of "the substance of each order or judgment of the court", showing the date on which such notation is made, on the folio of the civil docket assigned to the action and marked with its file number. Rule 79(b) requires the clerk also to keep "a correct copy of every final judgment or appealable order" in such form and manner as the Director of the Administrative Office shall prescribe.

The foregoing provisions of the rules differentiate between a judgment and the "entry" of the judgment, with the implication that the judgment must pre-exist before the clerk can perform the clerical or ministerial act of entering it.

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