Thompson v. Trent Maritime Company, Ltd.

• Decision Date: 29 March 1965
• Docket Number: No. 14913.,14913.
• Citation: 343 F.2d 200
• Court: U.S. Court of Appeals — Third Circuit
• Parties: James THOMPSON v. TRENT MARITIME COMPANY, LTD., Appellant, v. B. H. SOBELMAN & CO., Inc., Third-Party Defendant.

343 F.2d 200 (1965)

James THOMPSON v. TRENT MARITIME COMPANY, LTD., Appellant, v. B. H. SOBELMAN & CO., Inc., Third-Party Defendant.

No. 14913.

United States Court of Appeals Third Circuit.

On Motion to Dismiss Appeal October 5, 1964.

Decided March 29, 1965.

Thomas F. Mount, Rawle & Henderson, Philadelphia, Pa., for appellant.

Francis E. Marshall, Philadelphia, Pa., for appellee B. H. Sobelman & Co., Inc.

Before KALODNER, GANEY and FREEDMAN, Circuit Judges.

GANEY, Circuit Judge.

This matter comes before the court on the appellee-third-party defendant's motion to dismiss the appeal of the defendant taken on April 10, 1964, from the denial of his motion for a new trial on October 10, 1963.

The history of the litigation is as follows: On October 1, 1959, the plaintiff, James Thompson, filed a complaint in the United States District Court for the Eastern District of Pennsylvania, alleging therein, unseaworthiness on the part of the defendant-owner, due to inadequacy of the stowage conditions on the vessel, and negligence in failing to supply a safe place to work in the course of his employment, as a result of which he was struck with dunnage from which he sustained substantial injuries. The defendant then joined the stevedoring company, B. H. Sobelman & Co., Inc., as third-party defendant on the theory of indemnity over. On May 7, 1963, after trial, the jury returned a verdict in favor of the plaintiff, against the defendant, in the sum of $22,500, and in favor of the third-party defendant the appellee, in the suit against it by the third-party plaintiff and judgment was entered thereon the same day. On May 9, 1963, the defendant filed a motion to set aside the judgments entered, as well as a motion for a new trial, both in the primary case against it by the plaintiff and also in the third-party action by it against the third-party defendant. On October 4, 1963, the court entered an order denying both motions of the defendant, but on October 10, 1963, entered an order amending the previous one of October 4, 1963, which read as follows:

"The defendant\'s motion for new trial in the original action will be granted as to the issue of damages only in the event that the plaintiff fails to remit all of the damages above the sum of $15,000 * * * within ten days * * *.

"IT IS FURTHER ORDERED that the defendant\'s motions to set aside the judgments in favor of the plaintiff and the third-party defendant are denied, and further that the motion for new trial as to the third-party defendant is denied." 222 F.Supp. 221, 225.

The plaintiff failed to accept the remittitur and proceeded to trial on the question of damages only, on March 16, 1964, in which the jury returned a verdict in the amount of $10,000 on March 18, 1964. On April 7, 1964, the plaintiff appealed from the judgment entered on this verdict as follows:

"Notice is hereby given that James Thompson, plaintiff in the above captioned action, hereby appeals to the United States Court of Appeals for the Third Circuit from the judgment entered on March 18, 1964; and in addition thereto, the order of October 4, 1963, as amended on October 10, 1963, in which the court required the plaintiff to file a remittitur to $15,000 or suffer a new trial on the issue of damages."

On April 10, 1964, the defendant filed a notice of appeal as follows:

"Notice is hereby given that the Trent Maritime Company, Ltd., and third-party plaintiff, hereby appeals to the United States Court of Appeals for the Third Circuit from the judgment of B. H. Sobelman & Co., Inc., third-party defendant, entered on May 7, 1963, and shall become final for purposes of appeal on March 18, 1964, by reason of entry of judgment in favor of the plaintiff against the defendant."

It is with the third-party defendant's motion to dismiss this appeal, as being untimely, that we are herewith concerned, as it is to be noted that neither the plaintiff nor the defendant filed motions for new trial on the judgment entered on March 18, 1964.

There can be no question that an appeal from the judgment of a district court must be taken to this court within thirty days, pursuant to Rule 73 (a) of the Federal Rules of Civil Procedure.¹ This time is not to be extended beyond the period fixed, except for fraud, deception, coercion or duress. Old Nick Williams v. United States, 215 U.S. 541, 30 S.Ct. 221, 54 L.Ed. 318. Since a final judgment of a court not appealed from within thirty days is conclusive against a party, further consideration therefore elicits the inquiry, in our instance, as to whether the judgment entered on May 7, 1963, in accordance with the verdict of the same day, was a final judgment, so as to be appealable. If so, defendant's appeal on April 10, 1964, is not timely, and if it was not a final judgment at the time, the appeal of April 10, 1964 will be timely.

In making this determination, we must take into consideration Rule 54(b) of the Federal Rules of Civil Procedure, amended in 1946 to take effect in 1948, which reads as follows:

"(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties."

Here, there was no express determination on the part of the court to indicate that the judgment entered in favor of the third-party defendant-appellee, B. H. Sobelman & Co., Inc., was a final judgment.

The contentions here of the third-party defendant-appellee are that (1) the judgment in favor of the third-party defendant was a final judgment under 28 U.S. C.A. § 1291,² since it was reached after trial by jury and there should have been an appeal by the defendant within thirty days from the denial of his motion to set aside the judgment and for a new trial filed on May 9, 1963, and (2) that Rule 54(b) of the Federal Rules of Civil Procedure is not applicable to the instant case, since that rule was meant to govern only judge-made court orders and was not meant to apply to judgment entered upon a jury verdict under 28 U.S.C.A. § 1291.

Concerning this latter contention, extensive research by all counsel in the case and by this court has revealed no cases which make the distinction contended for by the third-party defendantappellee and it is submitted that, under the language of Rule 54(b) wherein it refers to "any order or other form of decision, however designated", is inclusive of jury verdicts, as well as court orders.

As to the first contention, it has been held that, absent a valid "express determination" which would allow an appeal, silence with respect thereto, has been construed as an equivalent to an express reservation of power by the trial judge that his order is subject to his own recall at any time before the end of the entire litigation. Republic of China v. American Express Co., 2 Cir., 190 F.2d 334. Furthermore, there can no longer be any doubt that Rule 54(b) in any wise limits or detracts from a final judgment, as set forth in 28 U.S.C.A. § 1291, supra, nor does it supersede any statute controlling appellate jurisdiction for, as stated in Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895, 901, 100 L.Ed. 1297, "It scrupulously recognizes the statutory requirement of a `final decision' under § 1291 as a basic requirement for an appeal to the Court of Appeals. It merely administers that requirement in a practical manner in multiple claims actions and does so by rule instead of by judicial decision." It attempts to make a reasonable accommodation between the policy limiting the normal jurisdiction of courts of appeal to reviewing final judgments as set out in 28 U.S.C.A. § 1291, supra, and those problems of the timing of the review which have been accentuated by the liberalized joinder of claims, counterclaims and third-party actions in one law suit, as has been permitted and encouraged by the present Rules of Civil Procedure.

Likewise, it is plain that the denial of the defendant's motion for a new trial, in the primary action, which denial limited the same to a determination of damages only precluded the order from being final and appealable. Tye v. Hertz Drivurself Stations, 173 F.2d 317 (3rd Cir.); Kales v. United States, 115 F.2d 497 (6 Cir.).

It is the defendant's contention that it could not appeal the denial of its motion entered on the judgment of October 10, 1963, rendered against it in...