Prickett v. Consolidated Liquidating Corp., 12

Citation180 F.2d 8
Decision Date15 February 1950
Docket Number360.,No. 12,12
PartiesPRICKETT, et al., v. CONSOLIDATED LIQUIDATING CORP.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mohr & Borstein, Perry Bertram, Los Angeles, Cal., for appellants.

Alfred Wright and Harold F. Collins, Los Angeles, Cal., for appellee.

Before MATHEWS, HEALY and ORR, Circuit Judges.

MATHEWS, Circuit Judge.

These two appeals were taken in an action brought against appellee on January 16, 1947, to enforce causes of action, hereafter called claims, for unpaid overtime compensation and liquidated damages under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. §§ 201-219. The claims sought to be enforced were those of Glenn O. Prickett, H. F. Winans, S. E. Whitney, Luther M. Walters, Samuel D. Tinker, Frank Hemminger, Oliver H. Raftery, Fred M. Koehler, Charles R. Cobb and Charles E. Smith-Sanford. Prickett, Winans and Whitney brought the action "on behalf of themselves and all other employees similarly situated." Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford claimed to be "employees similarly situated." They were not specifically named as parties plaintiff in the original complaint, but were so named in an amended complaint filed on April 6, 1949.

On May 23, 1949, appellee made (1) a motion "To dismiss the amended complaint and the pending action in its entirety" and (2) an alternative motion "To dismiss the amended complaint and pending action to the extent that it purports to assert claims on behalf of Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford." Thus the first motion was one to dismiss the action in its entirety, and the second (alternative) motion was one to dismiss the action as to Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford.

The first appeal was taken on June 22, 1949. It purports to be an appeal by Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford "from the judgment of dismissal as to each of them, entered in this action on May 23rd, 1949." There was no such judgment. The first appeal is therefore dismissed.

On September 8, 1949, the District Court entered an order the pertinent parts of which were as follows:

"It is ordered and adjudged, that the motion to dismiss certain claimants named in the amended complaint is hereby granted as to the following named claimants, to wit: Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford.

"It is further ordered and adjudged, that the motion to dismiss the amended complaint as to Prickett, Winans and Whitney is denied."

Thus, in effect, the order of September 8, 1949, denied the motion to dismiss the action in its entirety and granted the motion to dismiss the action as to Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford.

The second appeal was taken on September 8, 1949. It purports to be an appeal by all the plaintiffs "from that portion of the order of * * * September 8, 1949, which dismisses the claims of Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford." The order of September 8, 1949, did not contain any such "portion." It did not dismiss the claims of Walters, Tinker, Hemminger, Raftery, Koehler, Cobb and Smith-Sanford, nor did it dismiss the action as to them. It merely granted a motion to dismiss the action as to them. Such an order is not a final decision, within the meaning of 28 U.S.C.A § 1291, and is not appealable.1

No final judgment having been entered, the action is still pending as to all the plaintiffs. However, the District Court may hereafter direct the entry of a final judgment — a judgment which will be a final decision, within the meaning of § 1291, and hence will...

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11 cases
  • Rieser v. Baltimore and Ohio Railroad Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 9, 1955
    ...Agricultural Co. v. Maneja, 9 Cir., 178 F.2d 603, certiorari denied 339 U.S. 920, 70 S.Ct. 622, 94 L.Ed. 1344; Prickett v. Consolidated Liquidating Corp., 9 Cir., 180 F.2d 8; Id., 9 Cir., 196 F.2d 67. The case of Phelan v. Middle States Oil Corp., 2 Cir., 203 F.2d 836, is also to be added t......
  • Pabellon v. Grace Line
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 26, 1951
    ...Lockwood v. Hercules Powder Co., 8 Cir., 172 F.2d 775; Kuly v. White Motor Co., 6 Cir., 174 F.2d 742, 744; Prickett v. Consolidated Liquidating Corp., 9 Cir., 180 F.2d 8, 9, n. 3; and Kam Koon Wan v. E. E. Black, Ltd., 9 Cir., 182 F.2d 146, where the formula of the rule was stated to be ade......
  • Snowden v. Baltimore Gas & Elec. Co.
    • United States
    • Maryland Court of Appeals
    • September 1, 1983
    ...and direction required under Rule 605 a. See Picking v. State Finance Co., supra, 257 Md. at 558, 263 A.2d at 574; Prickett v. Consolidated Liquidating Corp., 180 F.2d 8, 9, 196 F.2d 67, 68 (9 Cir.1950, 1952); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice §§ 54.33, 54.34 (2d ......
  • Town of Clarksville, Va. v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • August 5, 1952
    ...of separate claims found in the cases but none which throws much light on the instant question. See, e. g., Prickett v. Consolidated Liquidating Corp., 9 Cir., 180 F.2d 8, 9; Hanney v. Franklin Fire Ins. Co., 9 Cir., 142 F.2d 864; Zalkind v. Scheinman, 2 Cir., 139 F.2d 895, 903, certiorari ......
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