Sacks v. Rothberg

Decision Date06 May 1988
Docket NumberNo. 88-7009,88-7009
Citation845 F.2d 1098,269 U.S.App.D.C. 353
Parties, 11 Fed.R.Serv.3d 233 Pauline SACKS and Marvin Sacks, Appellants, v. Herbert ROTHBERG.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-00865).

Joseph A. Artabane, Washington, D.C., for appellant.

Robert Plotkin and Robert E. Pokusa, Washington, D.C., for appellees.

ON MOTION TO DISMISS APPEAL AS PREMATURE

Before RUTH BADER GINSBURG, D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

The question before us is whether a premature notice of appeal becomes effective to vest this court with jurisdiction once the district court disposes, finally, of all matters pending before it. We answer that question in the affirmative, and hold that this court has jurisdiction over the instant appeal.

Appellants, Pauline and Marvin Sacks, filed a complaint alleging breach of contract and fraud, and requesting an accounting. Defendant, Herbert Rothberg, counterclaimed for abuse of process. On December 3, 1987, the district court granted summary judgment in favor of defendant on the breach of contract and fraud claims, and denied without prejudice the accounting claim. The court specifically noted that it was not ruling on the abuse of process counterclaim because that claim was not included in the cross-motions for summary judgment. On December 30, 1987, appellants filed a notice of appeal from the December 3, 1987 order. Appellee moved for voluntary dismissal of the counterclaim on January 7, 1988, and the district court granted that motion on January 26, 1988.

Appellee contends that dismissal is warranted, in light of Fed.R.Civ.P. 54(b), because the counterclaim remained pending in the district court at the time appellants filed the notice of appeal. The December 3, 1987 order neither resolved all claims nor included the determination and direction for the entry of judgment described in Fed.R.Civ.P. 54(b). That order, therefore, was not independently appealable under 28 U.S.C. Secs. 1291, 1292.

Every circuit that has thus far addressed this issue has held that an appeal taken prematurely effectively ripens and secures appellate jurisdiction when the district court's judgment becomes final prior to disposition of the appeal. See Gillis v. U.S. Dep't of H. & H. Services, 759 F.2d 565, 569 (6th Cir.1985); Alcorn County v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1165-66 (5th Cir.1984); Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983); Martin v. Campbell, 692 F.2d 112, 114 (11th Cir.1982); Pireno v. New York Chiropractic Ass'n, 650 F.2d 387, 390 n. 4 (2d Cir.1981), aff'd sub nom. United Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982); Baker v. Limber, 647 F.2d 912, 916 (9th Cir.1981); Merchants & Planters Bank of Newport, Arkansas v. Smith, 516 F.2d 355, 356 n. 3 (8th Cir.1975). We adopt the position taken by our sister circuits, which comports with the Supreme Court's admonition that "the requirement of finality is to be given a 'practical rather than a technical construction.' " Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964) (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed.2d 1528 (1949)). See also 28 U.S.C. Sec. 1653 (defective allegations of jurisdiction may be amended in appellate court).

The position we now adopt is both practical, and fully consistent with the considerations underlying the finality rule stated in Sec. 1291. * Because the January 26,...

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    ...and decide the instant appeal. See Metropolitan Baptist Church, Inc. v. Minkoff, 462 A.2d 460 (D.C.1983); Sacks v. Rothberg, 269 U.S.App.D.C. 353, 354, 845 F.2d 1098, 1099 (1988). 4. For each of the three categories, the court directed Fannie Mae to provide "appropriate detail" about severa......
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    • U.S. Court of Appeals — District of Columbia Circuit
    • 24 d5 Junho d5 2005
    ...jurisdiction here would have been easy prior to FirsTier. We had a line of precedent dating back at least to Sacks v. Rothberg, 845 F.2d 1098, 1099 (D.C.Cir.1988), in which we held that "an appeal taken prematurely effectively ripens and secures appellate jurisdiction when the district cour......
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    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 3 d5 Dezembro d5 2004
    ...order of September 9, 2002; it is procedurally proper because that order became final on November 8, 2002. See Sacks v. Rothberg, 845 F.2d 1098, 1099 (D.C.Cir.1988). Our review of the district court's denial of summary judgment is de novo. Cicippio-Puleo v. Islamic Rep. of Iran, 353 F.3d 10......
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    ...important constitutional or statutory right has very clearly been violated), TeleSTAR would seem applicable. But compare Sacks v. Rothberg, 845 F.2d 1098 (D.C.Cir.1988) (allowing premature appeal of a district court order to ripen). However, as the issue has not been briefed and we must dis......
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