Jacob Schuurman and Federal Insurance Company v. The Motor Vessel "Betty K V", Her Engines, Tackle, Etc., in Rem, and Doric Navigation, in Personam
798 F.2d 442
11th Cir.
1986
Check Treatment

*2 HATCHETT, Before RONEY and Circuit *, Judges, and HENDERSON Senior Cir Judge. cuit PER CURIAM: appeal presents impor- This an issue of appeals in tance to the the Elev- enth Circuit: isWhen that dis- misses a but allows a period stated within which he amend purposes final for appeal?

FACTS admiralty This action arose out of a colli- sion which occurred in Bahamian territorial plaintiff’s yacht “Spend- waters between thrift,” registry, a vessel of Florida V,” “Betty defendant’s boat K a vessel of registry.1 Panamanian * 3(b), Appeals understanding, "plain- Rules of the U.S. Court of 1. For ease of we will use See Rule throughout opinion. tiff” and this for the "defendant”

brought negligence claim in district district court’s order is not final. The sinking as a result of the of the Borelli court held that the dismissal of a plaintiff’s yacht prejudice due implicit to the collision. The “an amplify complaint.” invitation to granted the district court defendant’s mo F.2d at 951. grounds dismiss on the tion to *3 personam jurisdiction lacked de over Three cases precedent serve as for our Navigation fendant Doric and lacked in First, consideration. in United States v. jurisdiction the “Betty rem over defendant (5th Cir.1964), Mayton, 335 F.2d 153 the Navigation, K As to Doric V.” owner of appeal former Fifth Circuit an allowed V,”K “Betty the the court ruled that the from a Federal Rule of Civil Procedure alleged not plaintiff had sufficient facts to 12(b) claim, dismissal for failure to state a Navigation, Doric show that a non-resident noting course, that “of an unsuccessful defendant, doing was sufficient business in plaintiff may complaint file an amended give a Florida to rise to cause of action cure deficiencies. But held we have that statute, upon long-arm Florida’s Fla. permissive based this is and need not be done to (West 1969). finality Stat.Ann. 48.181 As to the invest in the order of dismissal.” § V,” “Betty plain K the court ruled that the 335 F.2d at 158 n. 12. parties agreed tiff not shown that the had Likewise, in United Steelworkers v. vessel, jurisdiction to the court’s over the American International Aluminum argued plaintiff by which was established (5th Corp., Cir.1964), 334 F.2d 147 the for- undertaking

the of a letter of lieu mer Fifth Circuit dismissing found an order Upon granting of arrest. the defendant’s complaint jurisdiction for lack properly of dismiss, motion to the district court allowed appealable, noting that since no other order plaintiff twenty from the days the date of entered, “put an end to the case.” the order to amend the Plain plaintiff That court further noted that tiff's motion for reconsideration was de “was entitled to treat the dismissal as final nied. required which it did. was not to formal- ly right any disclaim to file an amended complaint Plaintiff failed to amend the complaint.” 334 F.2d at 150 n. 4. twenty days the the dis- within allowed court, considering trict the district Finally, our circuit held in Czeremcha v. denying as a court’s order reconsideration International Assoc. Machinists and plain- appeal purposes, Workers, (11th final order for the Aerospace 724 F.2d 1552 Cir.1984), The appealed tiff to this court. defendants complaint, that dismissal of a jurisdiction subject jurisdiction, assert that we without be- lack of matter was not Czeremcha, cause no final order exists. a final In order. we noted that the order “did not state that it also dismissing the action or that the com DISCUSSION plaint through could not be saved amend plaintiff may always appear be Czeremcha, 724 In ment.” F.2d at 1555. fore the district court and ask that a final we reasoned and held: entered, necessary order of dismissal be Although plaintiff the does not have a finality. appeal If to ensure an is taken right to amend as a matter of course dismissal, from such a final order of within complaint, after dismissal of the the dis- rules, provided by appellate limits the time not automatically missal itself does ter- timely. will be That is not our minate the action unless the court holds in this concern case. Our concern is wheth possible either that no amendment is er and circumstances a what under that the dismissal of the also timely may properly take an constitutes dismissal of the action. requiring the district that court (footnotes omitted). 1554 724 F.2d at Relying enter a final order of dismissal. on City Reading, Mayton provid- Borelli v. 532 F.2d 950 and United Steelworkers (3d Cir.1976), pursuing ed a the choice either of the defendants contend (1958). permissive Jung, to amend In the district treating or of the order as granted .after dismissal plaintiffs’ motion to dismiss com- Czeremcha, appealable. final and plaint upon for failure to state a claim sought pro- F.2d at 1554. Czeremcha 10, granted May which relief could be on plaintiff from the situation tect on May granted plain- begins time to run which his tiffs leave to file an amended the dis- explicit absent an indication that twenty days. Plaintiffs chose not to is not curable. Consistent with missal complaint: yet, file an amended on March purposes, standard announce these we 25, 1957, plaintiff filed “an instrument in protects judicial also a defendant as well as case in which elected to stand on manipulative prolonging from resources first complaint.” their amended On that suits. day, same the district court ordered the that the dis- The district court rule *4 16, April cause of action dismissed. On explicitly missal terminates the action. 1957, plaintiffs appeal a notice filed of dismissal not Czeremcha holds that a will judgment “from final entered in this action automatically terminate an action when a 25, argued on March 1957.” Defendant dismissed, complaint is unless the court appeal untimely that the as the district possible that no amendment is or that holds judgment court’s became final when the complaint a the dismissal of the constitutes plaintiffs complaint failed to amend their dismissal of the action. 724 F.2d at 1554. 27, twenty days granted May within the on immediately appealable. an order is Such Supreme 1955. The Court held that the Where this situation is intended the district 27, 1955, May granting further order leave clearly court should so indicate. plaintiffs complaint to their to amend did dismissing complaint, In the the judgment not the in constitute final the may provide for stated district court also a Rather, 25, 1957, case. the March order plaintiff may period within which the requiring judgment the to enter in clerk complaint. plaintiff amend the If the does of favor the defendant constituted final complaint not amend the time within the judgment, plaintiffs’ appeal and thus of allowed, may no amendment be made ab 16, 1957, effect, April timely. In the court, sent leave of and the dismissal order plaintiffs given period were a of almost final at the end of the stated becomes years appeal two to the dismissal of their period. appeal purposes, For hold we any claim. The result would not have been the order of dismissal this situation be plaintiffs different had the waited even upon expiration final the of the time comes longer. The Court reasoned that the de- ap for for allowed amendment. The time sponte fendant or the district court sua peal is measured from the date on which sought could have to have a final the district court order dismissal of be expiration entered of after the the time situation, In plaintiff comes final. the permitted to the The amend expiration need not until the of the wait undesirability Court concluded that “[t]he time in to treat stated order the dismissal delays litigation of useless is more than final, may appeal prior expira as to the offset the hazards of mis- confusion or period. tion of the stated time Once the understanding appeal.” as to the time for expi plaintiff chooses to the before 337, 766, 356 U.S. at 78 S.Ct. at 2 L.Ed.2d amendment, for ration of time allowed at 808. however, the waives the to complaint, later amend the even the time pos- The rule set forth herein averts the yet expired. to amend has not sibility uncertainty of as to whether the of dismissal a constitutes a final prevents impropriety This result the judgment. protects plaintiff by put- the presented the situations such as that Supreme ting in his Jung Mining Court in v. K. D. hands the decision whether & Co., 335, 764, U.S. 78 S.Ct. L.Ed.2d not to treat the dismissal of his rule, final, simultaneously untimely. Although limits his abili- be

as harsh problem. would cure a difficult ty manipulate the rules. holding, In the absence of such a a dis- the The district court dismissed stipulate peri- missal which does not a time July on al plaintiff's plaintiff may od which the amend lowing twenty days for amendment. The complaint gives ability August period to amend ended on allowed manipulate opposing par- the courts and 16, filing plaintiffs of a motion 1984. ties. Where dismissal occurs without a not affect the time for reconsideration did amend, period plain- time within which to appeal. Fed.R.App.P. fit, any thought tiff amend at time 4(a)4. leaving defendants uncertain of whether not, forcing announce in this a lawsuit or the rule we Under point be un defendants to at some return to the opinion, plaintiff’s would would have district for clarification of status. timely. The dismissal order inaction, situation, August ap By plaintiff, An in this final on become may expand the time for as to have been filed within amendment peal have apply beyond well as the time for far thirty days thereafter. We do not Consequently, Appellate intent of the Federal Rules of this new rule to this case. Obviously, courts never attained the Procedure. district because the dismissal order, clearly should avoid dismissals without plaintiff’s January final status *5 timely, stating the time within which amendments notice of properly may be made. we find this case before us. merits,

On the we affirm the district

court.

AFFIRMED.

HATCHETT, Judge, concurring: Circuit agree by

I with the standard articulated however, majority, separately I write America, UNITED STATES may a third situation which con- address Plaintiff-Appellee, plaintiff upon front a the dismissal of his v. HICKS, Defendant-Appellant. Nancy when the The third situation arises com- plaint prejudice dismissed No. 85-5291. amend, leave to the district court with Appeals, United States Court time within which an fails to indicate the may be made. I would hold amendment appeal a dismissal of this that in order to Sept. type, must file notice of 4(a), Feder- the time allowed rule Procedure, Appellate measured al Rules

from the date of the district court’s order. plaintiff’s appeal of the dismissal waive the to later amend the

would I after the

complaint. would also hold that appeal (usually thirty days) has

time for

elapsed, if the has not chosen to order,

treat the dismissal as a final no taken. from the dismissal be

Further amendment