Jackson Jordan, Inc. v. Plasser American Corp., s. 83-1374
| Decision Date | 23 January 1984 |
| Docket Number | 83-1386,Nos. 83-1374,s. 83-1374 |
| Parties | , 220 U.S.P.Q. 945 JACKSON JORDAN, INC., Appellee, v. PLASSER AMERICAN CORPORATION, Appellant. JACKSON JORDAN, INC., Appellant, v. PLASSER AMERICAN CORPORATION and Franz Plasser Bahnbaumaschinen-Industriegesellschaft m.b.h., Appellees. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Alfred H. Plyer, Jr., Chicago, Ill., for appellant.
Phillip H. Mayer, Chicago, Ill., for appellee; Stephen G. Rudisill, Chicago, Ill., and Samuel J. Webster, Norfolk, Va., of counsel.
Before DAVIS, SMITH, and NIES, Circuit Judges.
Appellees in Appeal No. 83-1386 have moved that the appeal filed by Jackson Jordan, Inc. be dismissed on the ground that it was not timely filed within the 30 days required under Rule 4(a)(1) Fed.R.App.P. For the reasons indicated below, the motion is denied.
In July 1982, Jackson commenced a declaratory judgment suit as to the validity and infringement of Plasser's U.S. Patent No. 3,494,297 in the District Court for the District of Delaware at Wilmington, which was transferred in October 1982 to the U.S. District Court for the Eastern District of Virginia, Norfolk Division (first suit). In March 1983 Jackson filed a second suit in the U.S. District Court for the Northern District of Illinois, Eastern Division, against Plasser for violation of the antitrust laws on the ground that Plasser's '297 patent was obtained by fraud on the U.S. Patent and Trademark Office (second suit). The Illinois suit was transferred to Norfolk in April 1982 and was consolidated with the first suit by a court order dated May 5, 1983, which stated that the two suits were consolidated for trial.
The issue of the validity and infringement of Plasser's '297 patent and the issue of fraud before the U.S. Patent and Trademark Office were tried. The antitrust and damages issues were severed for a later trial, if any.
On August 8, 1983, the district court held Plasser's '297 patent invalid and entered judgment for Jackson in the first suit. The court also held that Plasser had not engaged in fraud before the Patent and Trademark Office and dismissed the second suit.
Plasser filed an appeal of the judgment in the first suit on September 6, 1983; Jackson filed an appeal (designated a "cross-appeal") of the judgment in the second suit on September 13, 1983, within 14 days of Plasser's appeal. Plasser asserts that Jackson's appeal had to be filed within 30 days of the August 8, 1983 judgment since it is a "separate appeal" of the second suit rather than a "cross-appeal" in the first suit, only the latter being entitled, in Plasser's view, to an extended filing period under the Federal Rules of Appellate Procedure.
The rules which are applicable here, Fed.R.App.P. Rule 4(a)(1) and (3), read as follows:
(1) In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry. If a notice of appeal is mistakenly filed in the court of appeals, the clerk of the court of appeals shall note thereon the date on which it was received and transmit it to the clerk of the district court and it shall be deemed filed in the district court on the date so noted.
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(3) If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period last expires.
Accepting Plasser's assertion that the two suits were consolidated only for purposes of trial, but otherwise retained their separate identity, the issue is whether Fed.R.App.P. Rule 4(a)(3) is restricted in application to an appeal in the same suit. We hold that Rule 4(a)(3) is applicable to any other appeal which may be taken in the consolidated proceeding, even though the consolidation was only for purposes of trial.
Plasser would have us read Rule 4(a)(3) as applicable only to "cross-appeals" in a technical sense, that is, only to appeals by one who has been made an appellee in a particular suit. Since the two proceedings below were not fully consolidated into a single suit, Plasser argues that Jackson's appeal was not technically a "cross-appeal," to which the benefit of Rule 4(a)(3) is given. This restrictive interpretation of Rule 4(a)(3) is not required by the language of the rule and is contrary to the expressed intent of the drafters.
Looking first at the language used, we point out that Rule 4(a)(3) applies to an appeal by "any other party." Thus, the provision is not limited to an involuntary appellee, but broadly encompasses any other party, including other appellants.
The Committee Note of 1966 to Amended Subdivision (a) 1 states:
The exception numbered (3) in the first sentence affords additional time for appeal to all parties other than an initial appellant whenever the first appeal taken from a judgment is taken within the 14 days preceding expiration of the time for appeal .... The added time which may be made available by the operation of the provisions is not restricted to cross appeals in the technical sense, i.e., to appeals by parties made appellees by the nature of the initial appeal. The exception permits any party to the action who is entitled to appeal within the time ordinarily prescribed to appeal within such added time as the sentence affords.
The exposition in Wright, Miller, Cooper, Grassman, Federal Practice and Procedure Sec. 39.50 n. 17 points out that the term "cross-appeal" does not appear in Rule 4(a)(3) and states:
The terms "cross-appeal" and "separate appeals" are not terms of art so far as the appellate rules are concerned. In general parlance, a cross-appeal is one filed by the appellee against the first or only appellant, a separate appeal is an appeal filed by any party other than the first appellant or appellee. Thus, where numerous parties aligned together in the lower court file individual appeals, all but the first are known as "separate appeals."
It is not necessary to designate on the notice of appeal or on the other...
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