John Insinga, as Personal Representative of the Estate of Mildred Insinga, Deceased v. Michelle Labella, Humana, Inc., D/B/A Biscayne Medical CenterJohn Insinga, as Personal Representative of the Estate of Mildred Insinga, Deceased v. Michelle Labella, Humana, Inc., D/B/A Biscayne Medical Center
- Reporters:
- , ,
- Before:
- Roney
On our own motion we have raised the question of whether this court has jurisdiction over this appeal. We conclude that where final judgment has been entered as to all defendants who have been served
Appellant John Insinga commenced this medical malpractice action in the state courts of Florida in 1983, naming as defendants the Florida Department of Professional Regulation (Department), the Florida Board of Medical Examiners (Board), Humana, Inc. (Humana), and Michelle LaBella, an alias used by Canadian citizen Morton Canton. All defendants were served except Canton, who had been extradited to Canada prior to the initiation of this suit and is said to be currently jailed in a Canadian prison. Appellant voluntarily dismissed the Department, and the Board subsequently obtained final summary judgment in its favor. After Humana successfully removed the case to United States district court, the court sua sponte granted a directed verdict in its favor and entered judgment thereon. Insigna now appeals this judgment in favor of Humana. 1
Both parties contend that this court has jurisdiction over this appeal. They argue that Humana was the only remaining defendant in the district court, as appellant asserts that he has no present intention of ever serving Canton with process. All other circuits which have addressed this issue have held that where an action is dismissed as to all defendants who have been served and only unserved defendants remain, the district court’s judgment may be considered a final appealable order.
See Bristol v. Fibreboard Corp.,
789 F.2d 846, 847 (10th Cir.1986);
Patckick v. Kensington Publishing Corp.,
743 F.2d 675, 677 (9th Cir.1984);
Leonhard v. United States,
633 F.2d 599, 608 (2d Cir.1980),
cert. denied,
451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981);
United States v. Studivant,
529 F.2d 673, 674 n. 2 (3d Cir.1976). These courts reason that a defendant who has not been served with process is not a party for purposes of
We find this unanimous authority to be persuasive. Here, the unserved defendant is currently residing in a Canadian jail, unlikely to seek to litigate further any aspect of this case. In these circumstances, there is no reason for
Notes
. We note that the district court did not merely grant a directed verdict in favor of Humana; it issued an “ORDER GRANTING A DIRECTED VERDICT AND A
FINAL JUDGMENT
IN FAVOR OF DEFENDANT HUMANA, INC.,
See
Distr.Ct. order at 1 (emphasis added). Thus, it appears that the district court considered this order to be a final disposition of the case. The court did not, however, make the required certification that there was no just reason for delay and expressly direct the entry of judgment in accordance with
. Of course, if the district court is given reason to believe that it is premature to assume that service will not be made on the currently unserved parties, it can direct that final judgment under
. We acknowledge that a decision of the former Fifth Circuit,
Lohr v. United States,
264 F.2d 619 (5th Cir.1959), might appear to dictate a different result.
Lohr
involved a single claim against multiple defendants, two of whom were never served with process. The court held that the existence of the unserved defendants destroyed the finality of a judgment which disposed of the plaintiffs claims against the served defendants, therefore the plaintiffs appeal was dismissed. We note, however, that
Lohr
was decided nearly thirty years ago, without the benefit of the thoughtful analyses provided by our sister circuits. Moreover,
Lohr
was decided under the pre-1961 version of