U.S. v. Olavarrieta

Decision Date22 January 1987
Docket Number86-5263 and 86-5303,Nos. 86-5113,s. 86-5113
Parties, 38 Ed. Law Rep. 42 UNITED STATES of America, Plaintiff/Third-Party-Defendant/Appellee, v. Jose L. OLAVARRIETA, Defendant/Third-Party Plaintiff/Appellant, The Board of Regents of the Division of Universities of the Florida Dept. of Education, and the University of Florida, Third-Party Defendants/Appellees. Non-Argument Calendar.
CourtU.S. Court of Appeals — Eleventh Circuit

Jose L. Olavarrieta, pro se.

Arthur C. Wallberg, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., Leon B. Kellner, U.S. Atty., Blanton B. Allen, Asst. U.S. Atty., Miami, Fla., for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before GODBOLD, VANCE and JOHNSON, Circuit Judges.

PER CURIAM:

The United States, as guarantor of Jose Olavarrieta's federally insured student loans totaling $4,000, filed suit against Olavarrieta in order to collect the unpaid balance and interest on the loans. Inter-National Bank of Miami made the loans to Olavarrieta under the Federal Insured Student Loan Program, Title IV-B of the Higher Education Act of 1965, 20 U.S.C.A. Secs. 1071-88. After Olavarrieta defaulted on the loans, the bank sought payment from the government. The government paid off Olavarrieta's liability to the bank and then sought reimbursement from Olavarrieta by filing this suit.

Olavarrieta filed a third party complaint against the University of Florida, claiming that it had violated the Higher Education Act of 1965 and had breached its contract with him by failing to award him a J.D. degree. Olavarrieta amended this complaint to add the Board of Regents of the Division of Universities of the Florida Department of Education as a third party defendant and to add a claim for indemnification by the third party defendants for any sums he was found to owe the government. The district court granted the University of Florida's motion to dismiss, finding that the University of Florida lacks the capacity to be sued in its own name, that service of process had been insufficient, that any claim was barred by any applicable statute of limitations, and that the complaint failed to state a claim on which relief could be granted. In a separate order, the district court granted the Board of Regents' motion to dismiss, finding that any claim was barred by the statute of limitations and that the complaint failed to state a claim on which relief could be granted. Olavarrieta immediately appealed both orders.

The United States moved for summary judgment, alleging that it was undisputed that Olavarrieta owed the money and that none of his defenses were applicable. Olavarrieta argued that the statute of limitations had expired. He did not contest that he had borrowed the money and signed the promissory notes therefor. The district court granted the government's motion for summary judgment but without setting an amount to which the government was entitled. Instead, the court directed the government to submit a proposed final judgment within ten days. Olavarrieta immediately appealed this order as well. After receiving the government's proposed judgment, the district court entered final judgment in favor of the United States, 632 F.Supp. 895. Olavarrieta filed a timely notice of appeal to the entry of the final judgment. All three appeals were consolidated in this proceeding.

In deciding this case, we find first that this Court has jurisdiction over the appeal challenging the district court's orders dismissing the third party complaint. Admittedly the orders were not final judgments, and Olavarrieta prematurely filed the notice of appeal. However, because the orders completely dismissed the claims against the University of Florida and the Board of Regents, they were amenable to certification under Fed.R.Civ.P. 54(b). In re Yarn Processing Patent Validity Litigation, 680 F.2d 1338, 1339-40 (11th Cir.1982). Therefore, the subsequent entry of a final judgment in the case established jurisdiction in this Court without Olavarrieta having to file a new notice of appeal as to those orders. Robinson v. Tanner, 798 F.2d 1378, 1382-85 (11th Cir.1986); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1229-31 (5th Cir.1973).

This Court also possesses jurisdiction to review the district court's order granting summary judgment in favor of the government. The order granting the government summary judgment on the issue of liability only was not a final judgment, and because it did not dispose entirely of the government's claim against Olavarrieta, it was not amenable to certification under Rule 54(b). Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 742-44, 96 S.Ct. 1202, 1205-07, 47 L.Ed.2d 435 (1976). Therefore, the subsequent entry of the final judgment did not cure the premature filing of a notice of appeal regarding that order. Robinson, 798 F.2d at 1382-85; United States v. Taylor, 632 F.2d 530, 531 (5th Cir.1980). However, the notice of appeal filed after entry of the final judgment determining damages vests this Court with jurisdiction to review the grant of summary judgment even though the premature notice did not do so. McLaughlin v. City of LaGrange, 662 F.2d 1385, 1387 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982).

Having determined that this Court has jurisdiction, we go on to hold that the district court properly dismissed the third party complaint against the University of Florida. The capacity to be sued is determined by state law. Fed.R.Civ.P. 17(b). Under Florida law, the University of Florida is not endowed with an independent corporate existence or the capacity to be sued in its own name. Rather, those characteristics are bestowed on the Board of Regents as the head of Florida's university system. Fla.Stat.Ann. Secs. 240.2011 and 240.205(4); Byron v. University of Florida, 403 F.Supp. 49, 54 (N.D.Fla.1975). Therefore, the University of Florida is not a proper party in this action, and the district court was correct in dismissing the third party complaint asserted against it. 1

The district court was also correct in dismissing the third party complaint against the Board of Regents. Olavarrieta simply has failed to state any legal or factual grounds for indemnification. Furthermore, to the extent the third party complaint seeks relief on account of the University's failure to award Olavarrieta a J.D. degree as promised, it does not set forth proper grounds for a third party claim under Fed.R.Civ.P. 14(a). Rule 14(a) allows a defendant to assert a claim against any person not a party to the main action only if that third person's liability on that claim is in some way dependent upon the outcome of the main claim. Rule 14(a) does not allow the defendant to assert a separate and independent claim even though the...

To continue reading

Request your trial
97 cases
  • US v. Pretty Products, Inc.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 13 Diciembre 1991
    ...defendant). Courts have uniformly dismissed third-party complaints based upon separate contracts. See, e.g., United States v. Olavarrieta, 812 F.2d 640, 643 (11th Cir.1987), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 reh'g denied, 484 U.S. 1082, 108 S.Ct. 1064, 98 L.Ed.2d 102......
  • Tipton v. Secretary of Educ. of US, Civ. A. No. 2:90-0105.
    • United States
    • U.S. District Court — Southern District of West Virginia
    • 21 Junio 1991
    ...by students to avoid repayment of their GSLP debts. United States v. Olavarrieta, 632 F.Supp. 895, 902 (S.D.Fla. 1986), aff'd, 812 F.2d 640 (11th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987); United States v. Whitesell, 563 F.Supp. 1355 n. 1 (D.S.D.1983); United S......
  • Davenport v. Neely
    • United States
    • U.S. District Court — Middle District of Alabama
    • 29 Mayo 1998
    ...and independent claim even though the claim arises out of the same general set of facts as the main claim." United States v. Olavarrieta, 812 F.2d 640, 643 (11th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987); see also United States v. Joe Grasso & Son, Inc., 380 F.......
  • US v. Berk & Berk
    • United States
    • U.S. District Court — District of New Jersey
    • 2 Mayo 1991
    ...government's foreclosure action, and denied leave to file a third-party complaint against the lender. Id. See also United States v. Olavarrieta, 812 F.2d 640 (11th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987) (government's action to recover on student loan default......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT