Willhauck v. Halpin, 89-1469

• Decision Date: 04 October 1989
• Docket Number: No. 89-1469,89-1469
• Citation: 919 F.2d 788
• Parties: Francis A. WILLHAUCK, Jr., Plaintiff, Appellant, v. Paul HALPIN, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 788

919 F.2d 788

18 Fed.R.Serv.3d 102

Francis A. WILLHAUCK, Jr., Plaintiff, Appellant, v. Paul HALPIN, et al., Defendants, Appellees.

No. 89-1469.

United States Court of Appeals First Circuit.

Heard Oct. 4, 1989.

Decided Nov. 21, 1990.

Robert C. Hahn with whom Han & Matkov, Boston, Mass., was on brief for appellant.

Gary J. Mena, Asst. Atty. Gen., Middleton, Mass., with whom James M. Shannon, Atty. Gen., Boston, was on brief, for appellee Metropolitan Dist. Com'n.

John P. Flynn with whom Murphy, Hesse, Toomey & Lehane, Quincy, Mass., was on brief for appellees Paul Halpin, the Town of Milton, John Moriarty, Robert Galvin and James Rogers.

Before BOWNES, Circuit Judge, BROWN, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

JOHN R. BROWN, Senior Circuit Judge:

In July 1982, the Willhaucks filed this multi-party, multi-claim action under 42 U.S.C. Sec. 1983 against various police officers and municipal entities, 16 defendants in all, involved in a late-night, high-speed chase through the city and outskirts of Boston and in a related subsequent intrusion into the Willhaucks' home. ¹ At various times during the extended pre-trial proceedings and at trial the district court dismissed on the merits several of the Will haucks' claims and all defendants except two police officers, who later obtained a favorable jury verdict. The Willhaucks appealed on the merits of this case previously, and this Court dismissed for want of jurisdiction. ² They again appeal, not from the merits (or demerits) of the judgment entered on the jury verdict, but rather from errors in one or more of the previous dismissals. They contend that final judgment was never entered for purposes of appeal as required by 28 U.S.C. Sec. 1291 and Federal Rules of Civil Procedure Rules 54(b), 58, and 79 as to the pre-trial and directed verdict orders dismissing the several defendants and claims. ³ We agree and vacate the district court's denial of the Willhaucks' motion for entry of judgments and remand.

The Midnight Ride--Not Paul Revere's

The merits of this case involve claims that, late on the night of July 1-2, 1979, several police officers of the towns of Milton and Dedham and the Metropolitan District Commission (MDC) instituted an unlawful, high-speed automobile chase of Francis A. Willhauck, Jr., through Milton, Dedham, and the Counties of Suffolk and Norfolk. The complaint alleges that the officers then beat Willhauck and, some months later, unlawfully invaded his and his family's home in the middle of the night. The amended complaint names as defendants 11 police officers, the MDC, the towns of Milton and Dedham, and the Counties of Suffolk and Norfolk. Damages and other declarative relief were sought for alleged violations of the Willhaucks' civil rights.

The procedural history of this case is quite complex and lengthy, but we emphasize only those events most relevant to this appeal. During the pre-trial phase of this lawsuit, the lower court granted Motions to Dismiss in favor of the towns of Dedham ⁴ and Milton, ⁵ and the MDC, ⁶ and also dismissed four of the 11 police officers named as defendants. ⁷ The court disposed of three other parties before trial, including the Counties of Suffolk and Norfolk ⁸ and Officer Belmonte. With regard to Belmonte, the record does not contain either the motion which the court acted upon or the order by which it dismissed this defendant. ⁹ With all of the government entities out, this case finally went to trial on August 11, 1987. On its sixth day, at the close of the Willhaucks' presentation of evidence, the court directed verdicts in favor of four of the six remaining police officer defendants. ¹⁰

At the conclusion of the trial, the jury returned a verdict in favor of the remaining police officers, Halpin and Perry, and the clerk entered judgment on the verdict, mentioning only these two defendants. ¹¹

The Willhaucks have taken two steps toward appeal of the district court's actions in this suit. The first step began with a motion "for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial." See F.R.Civ.P. 50(b), 59. The Willhaucks then filed a Notice of Appeal of the district court's denial of this motion a day before the lower court entered its order denying the motion. After requesting briefs on the merits and hearing oral argument, this Court dismissed the Willhaucks' appeal for want of a timely Notice of Appeal. See F.R.A.P. 3(a), 4(a)(4). ¹² In the meantime, the time for filing an effective Notice of Appeal from the district court's denial of their motion for judgment n.o.v. or new trial expired.

Educated by this exposure to the technical niceties of the Notice of Appeal, F.R.A.P. 4(a)(4), and the proper form for entries of judgment, F.R.Civ.P. 58, 79, the Willhaucks' counsel now focuses on reviving an attack on the correctness of the district court's pre-trial and directed verdict dismissals. The Willhaucks do this by their appeal from the trial court's denial of their Motion "for Entry of Judgment on Certain Issues and Parties." This motion, filed below on November 7, 1988, after the abortive appeal, referred specifically to the dismissal of all defendants and claims ¹³ disposed of prior to the lower court's order on the jury verdict in favor of Halpin and Perry. ¹⁴ The court on February 6, 1989, denied this motion, whereupon the Willhaucks moved on February 13 for reconsideration, which the court also promptly denied. The Willhaucks on March 3, 1989, filed Notice of Appeal to this Court, contesting the lower court's refusal to enter judgments.

No Penalty for Dropping the Ball

We first dispose of any notion that the Willhaucks' decision to pursue the initial appeal to this Court, which we dismissed as premature, prejudices their main argument here. The defendants contend that the district court's dismissal orders were sufficient on account of the Willhaucks' inclusion of all defendants in their first appeal. They argue that the fact that the first appeal was one on the merits against all defendants proves that the Willhaucks were satisfied that the claims against all defendants had been finally adjudicated.

This asserted acquiescence with the abortive appeal must be rejected. Not only was the Willhaucks' initial appeal dismissed for lack of jurisdiction, it actually was never commenced because of a Notice of Appeal which was a complete nullity. The Supreme Court's decision in Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982), is clear that a Notice of Appeal which is premature " 'simply self-destructs' " and should be treated as a nullity. Id. at 61, 103 S.Ct. at 403, 74 L.Ed.2d at 229 (quoting 9 Moore's Federal Practice p 204.12 (1982)). Emphasizing F.R.A.P. 4(a)(4), the Court stated:

Under the plain language of the current Rule, a premature notice of appeal "shall have no effect"; a new notice of appeal "must be filed." In short, it is as if no notice of appeal was filed at all.

Id. (emphasis added). Furthermore, while the Supreme Court has held that Rule 58's mechanical separate document requirement can be waived where both parties assent, see Banker's Trust v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), the Court emphasized that the rule should always be interpreted "to prevent loss of the right to appeal, not to facilitate loss." Id. at 386, 98 S.Ct. at 1121, 55 L.Ed.2d at 386 (quoting 9 Moore's Federal Practice p 110.08 (1970)). The appellees' argument rubs in the opposite direction.

The defendants' claims that the Willhaucks have forfeited the grounds of their present appeal are similar to those raised in Alman v. Taunton Sportswear Mfg. Co., 857 F.2d 840 (1st Cir.1988). Alman was an appeal from a district court's refusal to grant a defendant's motion for entry of final judgment on the court's grant of summary judgment to the plaintiff. Originally the defendant filed a Notice of Appeal of the dismissal after the 30-day deadline, see F.R.A.P. 4(a)(1), pleading "inadvertence" in response to this Court's order to show cause why it should not be dismissed as untimely. The appellee unsuccessfully argued that the defendant thereby waived any finality argument, since he did not contest finality in the original appeal. We disagreed and stated: "appellant's initial error could not make a non-final disposition final. Appellant had no right of appeal to waive." Alman, 857 F.2d at 845. Likewise, the Willhaucks' claims in their present appeal are not precluded by their original error: they may not unwittingly waive the requirement of finality of judgments.

The Rules and the Multi-Party Case

Finally we come to the main issue before us: whether there is a final judgment as to the defendants previously dismissed; ¹⁵ in other words, whether the lower court has properly disposed of all parties and made all judgments final. The first subsidiary question we must ask is whether the court's pre-trial and directed verdict dismissals satisfy Rule 58's "separate document" requirement. If we find that Rule 58 is not satisfied, the Willhaucks' claims against all defendants except for Halpin and Perry remain open until finally disposed of by the district court in a separate document. ¹⁶

Pursuant to section 1291, this Court may only entertain appeals from final decisions. ¹⁷ The words "final decisions" in this statute incorporate the terms "final judgments" and "final decrees." 9 Moore's Federal Practice p 110.08, pp. 43-44 (1990). Rule 58 states that a judgment is effectively final only when "set forth on a separate document" and "when entered as provided by Rule 79(a)." F.R.Civ.P. 58. Rule 79(a) directs the clerk to enter, inter alia, "all appearances, orders, verdicts, and judgments" in chronological order in the civil docket, taking care that the entries "show the nature of each paper filed or writ issued and the substance of each order or judgment of the court." F.R.Civ.P. 79(a). In order to be final...