Martinez v. Arrow Truck Sales, Inc., 87-1121
Decision Date | 23 August 1988 |
Docket Number | No. 87-1121,87-1121 |
Citation | 865 F.2d 160 |
Parties | Alejandro MARTINEZ, Appellant, v. ARROW TRUCK SALES, INC., Appellee. Claude Amar. |
Court | U.S. Court of Appeals — Eighth Circuit |
Henry J. Watson, Kansas City, Mo., for appellant.
William M. Modrcin, Kansas City, Mo., for appellee.
Before HEANEY, FAGG and BOWMAN, Circuit Judges.
Alejandro Martinez appeals the district court's grant of judgment notwithstanding the verdict to Arrow Truck Sales (Arrow). Before this Court is Arrow's motion to dismiss the appeal as untimely. We deny the motion.
In April 1986 a jury returned a verdict for Martinez against Arrow and another defendant, Amar. The district court entered a judgment in accordance with the verdict. Both Arrow and Amar filed timely post-trial motions; Amar moved for a new trial and Arrow moved for judgment notwithstanding the verdict or in the alternative for a new trial. The district court granted in full both Amar's and Arrow's post-trial motions on May 29, 1986.
On June 27, 1986, Martinez filed a notice of appeal from that portion of the district court's order granting Arrow's post-trial motion. He did not appeal the order granting Amar a new trial. On July 7, 1986, the Clerk of this Court informed Martinez by letter that the appeal may have been premature because the district court had granted a new trial. The Clerk then told Martinez to get a Federal Rule of Civil Procedure 54(b) certification from the district court. On December 4, 1986, the district court entered a Rule 54(b) certification, making that court's previous order granting Arrow's post-trial motion final for purposes of appeal. Martinez contends that he specifically asked the district court clerk if it would be necessary to file a new notice of appeal and that he was told there was no need to do so. Martinez also spoke with the Court of Appeals Clerk and was told that he should wait to receive further instructions. Subsequently, Martinez responded in a timely fashion to all of the customary requests for filings by the Court of Appeals Clerk.
Arrow has filed a motion to dismiss Martinez's appeal, asserting it is untimely. Arrow contends that because Martinez failed to file a second, timely notice of appeal after the Rule 54(b) certification, this Court does not have jurisdiction. Martinez argues that the subsequent Rule 54(b) certification validated the otherwise premature notice filed on June 27, 1986.
This Court has not addressed the procedural issue raised herein. Those courts of appeals which have addressed the issue are divided. Compare Oak Constr. Co. v. Huron Cement Co., 475 F.2d 1220, 1221 (6th Cir.1973) (per curiam) ( ) 1 with Crowley Maritime Corp. v. Panama Canal Comm'n, 849 F.2d 951, 954 (5th Cir.1988) ( ); Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir.1988) (en banc) ( ); Tidler v. Eli Lilly & Co., 824 F.2d 84, 85-87 (D.C.Cir.1987) (per curiam) ( ); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 760 F.2d 177, 180-81 (7th Cir.1985) ( ); Freeman v. Hittle, 747 F.2d 1299, 1302 (9th Cir.1984) ( ); and Tilden Fin. Corp. v. Palo Tire Serv., 596 F.2d 604, 607 (3rd Cir.1979) (same).
We agree with the circuits in the majority. To allow Rule 54(b) certification to retroactively validate a prematurely filed notice of appeal Freeman, 747 F.2d at 1302. Further, the "principle [that] the district court was without power to amend the order appealed from in any way after the notice of appeal was filed * * * has always been shot through with exceptions where a fair construction of the Federal Rules of Civil Procedure so requires." Local P-171, Amalgamated Meat Cutters and Butcher Workmen v. Thompson Farms Co., 642 F.2d 1065, 1073 (7th Cir.1981). We also note that "[t]he Supreme Court * * * has...
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