Metropolitan Federal Bank of Iowa, F.S.B. v. W.R. Grace & Co.

• Decision Date: 08 September 1993
• Docket Number: 92-1807,92-2181,Nos. 92-1769,92-2329,s. 92-1769
• Citation: 999 F.2d 1257
• Parties: METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellant, Metropolitan Federal Bank of Minnesota, F.S.B.; Metropolitan Federal Bank, F.S.B., Plaintiffs, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees, United States Gypsum Corporation, Defendant. METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellee, Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee, Metropolitan Federal Bank, F.S.B., Plaintiff, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants, United States Gypsum Corporation, Defendant. METROPOLITAN FEDERAL BANK OF IOWA, Plaintiff, Metropolitan Federal Bank of Minnesota, Plaintiff-Appellant, Metropolitan Federal Bank, Plaintiff, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees, United States Gypsum Corporation, Defendant. METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff, Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee, Metropolitan Federal Bank, F.S.B., Plaintiff, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants, United States Gypsum Corporation, Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1257

999 F.2d 1257

26 Fed.R.Serv.3d 576

METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellant,

Metropolitan Federal Bank of Minnesota, F.S.B.;

Metropolitan Federal Bank, F.S.B., Plaintiffs, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees, United States Gypsum Corporation, Defendant.

METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff-Appellee, Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee, Metropolitan Federal Bank, F.S.B., Plaintiff, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants, United States Gypsum Corporation, Defendant.

METROPOLITAN FEDERAL BANK OF IOWA, Plaintiff, Metropolitan Federal Bank of Minnesota, Plaintiff-Appellant, Metropolitan Federal Bank, Plaintiff, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellees, United States Gypsum Corporation, Defendant.

METROPOLITAN FEDERAL BANK OF IOWA, F.S.B., Plaintiff, Metropolitan Federal Bank of Minnesota, F.S.B., Plaintiff-Appellee, Metropolitan Federal Bank, F.S.B., Plaintiff, v. W.R. GRACE & CO.; W.R. Grace & Co.--Conn., Defendants-Appellants, United States Gypsum Corporation, Defendant.

Nos. 92-1769, 92-1807, 92-2181, 92-2329.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 19, 1993.

Decided July 27, 1993.

Rehearing Denied Sept. 8, 1993.

Daniel A. Speights, Hampton, SC, argued (Steven C. Lian, Minot, ND, and Jon M. Arntson, Fargo, ND, on brief), for appellant.

Kell M. Damsgaard, Philadelphia, PA, argued (Dennis J. Valenza of Philadelphia, PA, and Sandra Wallace Napolitano, Thomas B. Caswell, and Brooks F. Poley, Minneapolis, MN, on brief), for appellee, U.S. Gypsum.

Allen W. Hinderaker, Minneapolis, MN, argued (Hugh V. Plunkett, III, and Keith J. Halleland, on brief), for appellee, W.R. Grace & Co.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Metropolitan Federal Bank of Minnesota appeals the decision of the District Court ¹ to grant summary judgment to W.R. Grace & Company and W.R. Grace & Company--Connecticut ² (collectively W.R. Grace) on Metropolitan's claims for recovery of asbestos abatement costs. W.R. Grace cross-appeals, challenging the District Court's decision to extend the time to file the notice of appeal and the decision to grant Metropolitan's motion for voluntary dismissal of the claims related to buildings located in states other than Minnesota. We affirm.

We first address W.R. Grace's contention that we should dismiss this appeal for lack of jurisdiction. The District Court granted summary judgment in favor of W.R. Grace on February 28, 1992. 793 F.Supp. 205. On March 27, 1992, Metropolitan filed a notice of appeal for "Metropolitan Federal Bank of Iowa, et al." On April 14, 1992, the erroneous party name having been brought to Metropolitan's attention by the Clerk of this Court on April 8, Metropolitan filed an amended notice of appeal correctly naming Metropolitan Federal Bank of Minnesota as appellant, together with a motion for extension of time to file a notice of appeal. Metropolitan's motion was made pursuant to Federal Rule of Appellate Procedure 4(a)(5), which reads in part: "The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time" for filing a notice of appeal. Because this motion was filed after the original thirty days time for notice of appeal had passed, Metropolitan was required to show excusable neglect rather than mere good cause. See Bartunek v. Bubak, 941 F.2d 726, 728 (8th Cir.1991). The District Court found "that any error in the original Notice was the result of excusable neglect," and granted the motion. Order of May 8, 1992.

The decision whether to grant such a motion is entrusted to the district court by rule, and we will reverse only if we conclude the district court abused its discretion in finding excusable neglect. See Vogelsang v. Patterson Dental Co., 904 F.2d 427, 431 (8th Cir.1990).

W.R. Grace first argues that the misnomer because of clerical error rendered the first notice of appeal out of compliance with Federal Rule of Appellate Procedure 3(c), and therefore the need for an extension of time to file a notice of appeal could not be the result of excusable neglect. W.R. Grace relies on a Supreme Court opinion as support for this proposed per se rule. In Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), the Court affirmed final dismissal of Torres's claim because of his failure to timely appeal. Torres's name was omitted from the list of appellants because of a clerical error, but at no time did Torres file a motion pursuant to Federal Rule of Appellate Procedure 4(a)(5) to amend the notice. Thus the Court never reached the question of whether that error was excusable neglect, and so Torres does not set forth, as W.R. Grace suggests, a per se rule that noncompliance with Rule 3(c) as a result of clerical error can never be excusable neglect.

Ordinarily, excusable neglect under Rule 4(a)(5) is found, and an extension of time to file a notice of appeal is appropriate, when the appealing party has not learned of the entry of judgment in a timely manner. Benoist v. Brotherhood of Locomotive Eng'rs, 555 F.2d 671, 672 (8th Cir.1977) (per curiam). But a finding of excusable neglect is not limited to that situation. "[T]he District Court does have the power to grant extensions in extraordinary cases so that injustice may be avoided." Dugan v. Missouri Neon & Plastic Advertising Co., 472 F.2d 944, 948 (8th Cir.1973).

Although we think the excusable nature of the neglect here is arguable, we cannot conclude that it was an abuse of the trial court's power to find excusable neglect. Clearly, filing the notice of appeal with the wrong name was an oversight, but we do not think it a "palpable oversight" that requires us to reverse the District Court's decision. Vogelsang, 904 F.2d at 431. "Metropolitan Federal Bank of Iowa, et al." was the District Court case caption, even in the order granting summary judgment and dismissing all but the Minnesota claims. W.R. Grace used the same case name in its notice of cross-appeal, so it cannot now argue that the error was obvious.

We also believe it is significant that Metropolitan filed a timely notice within the first thirty days, albeit naming a party incorrectly. We are mindful that the filing of a notice of appeal that complies with Federal Rule of Appellate Procedure 3 is jurisdictional and that we cannot assume jurisdiction over an appeal improperly filed, regardless of the lack of prejudice to the party challenging the notice. See Manis v. Sterling, 862 F.2d 679, 680 (8th Cir.1988). Nevertheless, this is not a case where no notice--defective or otherwise--was lodged within the thirty days permitted for filing a notice of appeal. Because the problem here was not the result of inaction, or blatant disregard for or ignorance of the rules, we are less inclined to reach a decision that will result in the avoidable injustice of depriving Metropolitan of its day in this Court, its appeal on the merits. Although we think it is unlikely that we would have reversed a decision by the District Court that Metropolitan's neglect was not excusable, we cannot say that the District Court abused its discretion to decide such motions by granting the motion here. ³

Finding that we have jurisdiction over this appeal, we proceed to address the issues Metropolitan has raised.

Metropolitan filed suit in the District Court under the court's diversity jurisdiction on June 29, 1990, seeking recovery of its costs for the abatement of asbestos-containing building materials found in some of its facilities. The facilities relevant to this issue on appeal were substantially completed by 1975 and acquired by Metropolitan in 1986 and 1988. The District Court applied the Minnesota statute of limitations and repose for actions arising out of the construction of improvements to real property to bar Metropolitan's cause of action. Minn.Stat. § 541.051 (1992). The court, applying the repose provision of Section 541.051, determined that Metropolitan's action was time-barred because it was started more than ten years after substantial completion of the buildings. Metropolitan, however, charges W.R. Grace with fraud and contends that the repose period should be tolled.

Section 541.051 bars actions started outside the statutory limits "[e]xcept where fraud is involved." Id. § 541.051(1)(a). "[I]f the defendant has by fraud prevented the plaintiff from discovering the defective and unsafe condition within [the repose period], the statute is tolled until the plaintiff could, by reasonable diligence, have discovered the defective condition." Wittmer v. Ruegemer, 419 N.W.2d 493, 497 (Minn.1988). We review the District Court's interpretation of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

We reject W.R. Grace's suggestion, made without relevant supporting authority, that "fraud" here means something other than common law fraud, specifically, that the term means only fraudulent concealment. The statute does not provide a definition limiting the scope of "fraud" to fraudulent concealment. Nevertheless, we agree with W.R. Grace that the District Court did not err in determining that there were no genuine issues of material fact on the fraud question. See Fed.R.Civ.P. 56(c). Metropolitan does not contend that W.R. Grace made affirmative representations to Metropolitan. (Indeed, it is foreclosed from doing so as the parties had no dealings when the buildings at issue were constructed; Metropolitan acquired those buildings years later and does not claim W.R. Grace communicated anything that would toll the statute.) Instead, Metropolitan claims that "fraudulent nondisclosure" falls within the statutory meaning of "fraud," and that it...