Tye v. Hertz Drivurself Stations

• Decision Date: 10 February 1949
• Docket Number: No. 9598.,9598.
• Parties: TYE v. HERTZ DRIVURSELF STATIONS, Inc.
• Court: U.S. Court of Appeals — Third Circuit

173 F.2d 317 (1949)

TYE v. HERTZ DRIVURSELF STATIONS, Inc.

No. 9598.

United States Court of Appeals Third Circuit.

Argued November 3, 1948.

Decided February 10, 1949.

George E. Beechwood, of Philadelphia, Pa. (Bernard J. Smolens and Conlen, LaBrum & Beechwood, all of Philadelphia, Pa., on the brief), for appellant.

M. E. Maurer, of Philadelphia, Pa., for appellee.

Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

This action was instituted to recover unpaid overtime compensation and liquidated damages pursuant to Section 16 (b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1069, 29 U.S.C.A. § 216(b). In this Court, the plaintiff-appellee has argued the seasonableness of the appeal, but in our view the decisive question is whether it is taken from a "final decision." The issue is one which we raise of our own motion, for the appellate jurisdiction of this Court is prescribed by statute and limited, except in instances not here relevant, to "final decisions" of the district courts.¹ Dugan & McNamara, Inc. v. Clark, 3 Cir., 1948, 170 F.2d 118, 119.

The chronology of events leading to the orders from which this appeal is taken, is as follows:

On plaintiff's motion for summary judgment, the District Judge held that the defendant was liable under the Act; that a release executed by the plaintiff did not constitute a bar; that jurisdiction should be retained for the purpose of ascertaining damages; and that upon such determination the plaintiff should be charged with the sum of $639.67 previously paid to him by the defendant, but the credit should be applied first to the portion of plaintiff's claim barred by time. An order to that effect was filed October 3, 1946.

Thereafter, a trial was had on the issue of damages, that is, the hours worked by and the wages due the plaintiff. The jury returned a verdict for the plaintiff in the amount of $639.67, the presiding judge² having directed a minimum verdict of $585. Judgment therefor was entered on October 28, 1946, 80 F.Supp. 536. Within ten days, the defendant moved for judgment pursuant to Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., and the plaintiff moved for a new trial and for what he designated as "judgment n.o.v."

On June 17, 1947, the District Judge filed a Memorandum Opinion, 8 F.R.D., 429, 430, ruling favorably on the plaintiff's motion for a new trial and adversely on the defendant's motion for judgment. It also ruled adversely on the plaintiff's motion for "judgment n.o.v.," which, incidentally, it treated as a motion to enter judgment in a larger amount than that returned by the jury. On the same day, an order granting plaintiff's motion "for a partial new trial on the issue of damages" was filed, but the order did not specifically refer to the motion of either party for judgment. On July 1, 1947, the plaintiff filed an order to place the case on the trial list.

On October 8, 1947, the defendant again moved for entry of judgment in its favor.³ On November 26, 1947, the District Judge, in a Memorandum Opinion, 7 F.R.D. 594, held that the motion did not come within the time limit of Rule 50(b). No order was entered in accordance therewith until January 8, 1948. On the latter date another order was filed expressly purporting to be in accordance with the Memorandum Opinion of June 17, 1947. This order denied plaintiff's motion for "a further judgment" and defendant's motion for judgment, and granted plaintiff's motion "for a partial new trial on the issue of damages."

The present appeal is taken from the orders of October 3, 1946, and January 8, 1948.⁴

The plaintiff takes the position that the orders of October 3, 1946, and June 17, 1947, are final and appealable, but that the time for appeal has elapsed; that the order of January 8, 1948, granting the partial new trial and denying the first motions for judgment is merely "supererogatory" and of no effect; and that the order of January 8, 1948, denying the defendant's second motion for judgment, is not appealable, since the motion was filed too late for consideration by the District Court. The defendant, on the other hand, merely assumes that the orders of January 8, 1948, are effective and appealable. Both are wrong.

Whether the time for appeal from the order of October 3, 1946, has elapsed is irrelevant, for we have held in an identical situation that a "partial summary judgment" of this nature is not final, therefore not appealable. Russell v. Barnes Foundation, 3 Cir., 1943, 136 F.2d 654. The same result was reached in Leonard v. Socony-Vacuum Oil Co., 7 Cir., 1942, 130 F.2d 535, and in Biggins v. Oltmer Iron Works, 7 Cir., 1946, 154 F.2d 214; see also Amendments to Rule 56 and the Notes thereto of the Advisory Committee.

Moreover, the order of October 3, 1946, did not become final with the entry of the order of June 17, 1947, granting a new trial. Such an order is not final and not directly appealable. We have so held: Florini v. Stegner, 3 Cir., 1936, 82 F.2d 708; Frank Mercantile Corporation v. Prudential Ins. Co. of America, 3 Cir., 1940, 115 F.2d 496; accord, Barbarino v. Stanhope S. S. Co., 2 Cir., 1945, 150 F. 2d 54. The same is necessarily true of the orders of January 8, 1948, for the sum and substance of them was simply to grant a new trial. Libby, McNeill & Libby v. Malmskold, 9 Cir., 1940, 115 F.2d 786; Balicki v. Central Greyhound Lines, Inc., 3 Cir., 1945, 150 F.2d 402; cf. Allegheny County v. Maryland Casualty Co., 3 Cir., 1943, 132 F.2d 894, certiorari denied 318 U.S. 787, 63 S.Ct. 981, 87 L.Ed. 1154. The portions of the orders of January 8, 1948, denying all the motions for judgment do not alter the fact that there is, in this case, no final determination of the rights and liabilities of the parties. Cf. Stewart v. Roberts, 1946, 80 U.S.App.D.C. 405, 154 F.2d 697.

Finally, the defendant asserts that the effect of the orders granting a "partial new trial on the issue of damages" was to leave in force the judgment entered on the jury's verdict, the re-trial to relate only to the issue...