280 F.2d 755 | 2d Cir. | 1960
Lead Opinion
Luckenbach Steamship Company, Inc., the third-party plaintiff and appellant, is a defendant below (with others) in a consolidated action representing 285 suits on behalf of 585 individuals to recover personal injury and death damages resulting from a fire and explosion on December 3, 1956, on a pier in Brooklyn operated by it as an intereoastal water carrier. No trial has yet been had of
It is believed to be wholly clear that in no event can the action be appeal-: able at this time and upon this subordi-' nate issue of indemnity over. The situation comes within the express terms of F.R. 54(b) as amended in 1948, that in’ the absence of the determination and direction therein provided for — “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment” — “any order or other form of de cisión, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” The validity of this rule was upheld in Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297, and Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311. So we have continuously dismissed appeals lacking the requisite determination and direction, late examples being United States v. Gottfried, 2 Cir., 278 F.2d 426, and G. K. W., Inc. v. Philco Corp., 2 Cir., 276 F.2d 928. Obviously the certification for an interlocutory appeal under 28 U.S.C. § 1292(b) is of a different tenor and serves a different purpose; it affords a means of selecting certain interlocutory orders for immediate appeal and does not, as does the rule, define the elements of finality which is the normal basis for appellate action. The salutary limitations contained in the .rule are not to be set at naught by accepting in substitution a quite different procedure aimed at a different end.
In its eagerness to secure immediate review appellant urges us to take some action, as by mandamus to the judge below, to procure the finding and direction necessary to achieve finality under F.R. 54(b). This, however, we are .unwilling to do. Even if we pass the very dubious point of thus attempting to control or force the judge’s exercise of discretion in circumstances in no way ■compelling, we immediately face serious ■issues of law and policy. Appellee indeed asserts that the rule is in no event applicable for want of separate or multiple claims, and this seems to have been held !in two circuits prior to Supreme Court action. But we had held otherwise in Pabellon v. Grace Line, 2 Cir., 191 F.2d 1169, certiorari denied Coston Supply Co. v. Pabellon, 342 U.S. 893, 72 S.Ct. 201,
So apt and compelling is Judge Hastie’s opinion (for Chief Judge Biggs, Judge Goodrich, and himself) in Panichella v. Pennsylvania R. Co., supra, 3 Cir., 252 F.2d 452, 455, that we quote at some length from it. After pointing out that the draftsmen of the amended rule had made explicit their thought that it would serve only to permit of a discretionary remedy in the “infrequent harsh case,” he continues:
* * It follows that 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel. The power which this Rule confers upon the trial judge should be used only ‘in the infrequent harsh case' as an instrument for the improved administration of justice and the more satisfactory disposition of litigation in the light of the public policy indicated by statute and rule. See 6 Moore, Federal Practice, 1953, 264-65.
“Thus evaluated the present occasion was clearly not an appropriate one for entering a special order under Rule 54(b). First, the third-party claim is so completely incidental to and dependent upon the principal claim that there can be no recovery upon the third-party claim unless the plaintiff shall prevail on the principal claim. The entire matter which is presented on this appeal will become moot if for any reason Panichella does not recover against the Railroad. This in itself is a distinct argument of substantial weight supporting the normal postponement of review until the entire case shall be decided. Cf. Flegenheimer v. Manitoba Sugar Co., Ltd., 2 Cir., 1950, 182 F.2d 742; and see Baltimore & O. Ry. Co. v. United Fuel Gas Co., 4 Cir., 1946, 154 F.2d 545, 546-547.
“ * * * [The court then considers “Second” the problem of a release given by the original plaintiff not a party to this appeal.]
“Third, as a practical matter the taking of an appeal on the third-party claim at this stage serves to delay the trial of the principal claim without in any way either simplifying or facilitating its future litigation. Cf. Slattery v. Marra Bros., D.C.S.D.N.Y.1950, 92 F.Supp. 534. If, on the other hand, the trial of the principal claim should not be postponed pending this appeal, there would not be even a colorable argument for authorizing an appeal at this time. For the claimed advantage of this proceeding is the preservation of the possibility that, in the*759 ■event the appeal succeeds, the merits ■of the principal claim and the merits •of the third party claim can be tried together.
“To state these factors is to make it apparent that, far from presenting hardship or unfairness justifying discretionary departure from the normal rule as to the time of appeal, this case bristles with considerations which reinforce the normal rule. We think the District Court did not view in proper perspective the problem presented by an application for a special order under Rule 54(b). Had it done so, we think it could not have avoided the conclusion that the application should be denied.”
The considerations thus so persuasively stated have special force here under the particular circumstances of this case. The immediate cause of the disaster •claimed by the plaintiffs below was the negligence of Luckenbach’s agent and ■codefendant, Atlantic Ship Rigging Co., in its use in repairing certain cargo-'handling equipment of an acetylene torch, the molten metal or sparks from which ■caused a fire which reached a shipment ■on the pier of 370,000 pounds of explosive material. Luckenbach’s claim against Muehlstein, however, was based on the contention that nearly a month earlier the latter had deposited on the pier for ■consignment to itself in Los Angeles “705 Bags Scrap Rubber” consisting of ■ground rubber, which was highly inflammable, improperly packed, and in improper condition for shipment, and that its negligence in so acting caused the injuries to plaintiffs, if they occurred. As was aptly said by Justice McGivern in a companion state action and quoted by Judge Rayfiel below: “Muehlstein may be said to be the remotest in the chain of causation and activity.” Bush Terminal Bldg. Co. v. Luckenbach Steamship Co., Sup., 196 N.Y.S.2d 515, 519. Thus for a judgment to go against Muehlstein the plaintiffs must first establish their claims, then Luckenbach must prove its special charge of negligence in the scrap foam rubber shipment, and finally it must prove some form of liability upon the part of Muehlstein, either through some special warranty or agreement of indemnity (which Judge Rayfiel has found nonexistent) or by application of the New York law of indemnity over in the case of active, as distinguished from passive, negligence. See discussion in Guarnieri v. Kewanee-Ross Corp., 2 Cir., 263 F.2d 413, modified 2 Cir., 270 F.2d 575; Putvin v. Buffalo Electric Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691. Obviously Luckenbach has at best an uphill fight on both facts and law. But as to practically all of this we are in no position to adjudicate at this time. The most that we could say would seem to be that the case should remain open against Muehlstein; but since the order below is not final, it remains “subject to revision at any time before the entry of judgment adjudicating all the claims,” as F.R. 54(b) expressly provides. Hence far from being ready for appellate review, the case affords a prime illustration of the waste and futility of piecemeal appeals.
Appeal dismissed.
. Of the four active judges participating (the fifth being disqualified) three voted to deny leave to appeal without adding any qualification, while Judge Moore stated, “I concur without prejudice to the appealability of the order.”
. The foresight thus shown was supported by the eventual outcome of the litigation where both the defendant and the third-party defendant had judgment. Panichella v. Pennsylvania R. Co., 3 Cir., 268 F.2d 72, certiorari denied 361 U.S. 932, 80 S.Ct. 370, 4 L.Ed.2d 353.
Dissenting Opinion
(dissenting).
In my opinion the interests of orderly and expeditious trial procedure would best be served by having all issues before the court on the trial so that an appropriate judgment could then be entered upon the facts and verdict resulting therefrom.