Case Information
*4 BEFORE: AMBRO, FUENTES, and GREENBERG, Circuit Judges
(Filed: August 18, 2006)
Kim Hoyt Sperduto (argued)
T. Stewart Rauch
The Sperduto Law Firm
2021 L Street, N.W.
Second Floor
Washington, DC 20036
Steven M. Richman
Sandra A. Jeskie
Duane Morris
240 Princeton Avenue
Suite 150
Hamilton, NJ 08619
Attorneys for Appellee
Samuel P. Moulthrop (argued)
Alexa Richman-La Londe
Andrew M. Contreras
Riker, Danzig, Scherer, Hyland
& Perretti
Headquarters Plaza
One Speedwell Avenue
Morristown, NJ 07962-1981
Robert A. Lonergan
Vice President and General Counsel
Ellen S. Friedell
Associate General Counsel
Rohm and Haas Company
100 Independence Mall West
Philadelphia, PA 19106
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This mаtter comes on before the court on an appeal by Morton International, Inc. (“Morton”) from the district court’s order entered on March 30, 1999, dismissing Morton’s contribution claim against Redland Minerals, Ltd. (“RML”) for want of personal jurisdiction. The contribution action succeeded a state court proceeding in which the court found Morton and various other entities jointly and severally liable for mercury contamination in the area of Berry’s Creek in Bergen County, New Jersey. Morton later filed an action against RML and other defendants seeking contribution. The district court dismissed RML from the action for want of personal jurisdiction on March 30, 1999, and granted summary judgment to another defendant, Tennessee Gas Pipеline Company (“Tenneco”), on July 23, 2001. Thereafter, with the remaining parties’ consent and at their request, the court dismissed the case without prejudice as to the remaining defendants on October 23, 2001. Morton subsequently appealed from the July 23, 2001 order, and after we vacated that order on September 16, 2003, and remanded the case against Tenneco to the district court, that court on September 14, 2004, dismissed the action against Tenneco without prejudice. Then, on October 6, 2004, Morton filed an appeal from the order of March 30, 1999, dismissing the action against RML. [1] RML has filed a motion to dismiss the appeal for lack of appellate jurisdiction. We will grant RML’s motion to dismiss because we lack jurisdictiоn over Morton’s premature appeal.
II. FACTS AND PROCEDURAL HISTORY In 1976, the New Jersey Department of Environmental Protection (“DEP”) commenced an enforcement action in the Superior Court of New Jersey against various entities as a result of contamination in the Berry’s Creek area. [2] The DEP was successful in the action, and, on the ensuing appeal the Supreme Court of New *7 Jersey in 1983 affirmed a Superior Court order requiring those entities, including Morton, to remediate the contamination in the Berry’s Creek area. See Dep’t of Envtl. Prot. v. Ventron Corp., 468 A.2d 150 (N.J. 1983). In 1996, Morton, which is the successor in interest to Ventron Corporation, a defendant in the state case, filed this action seeking contribution for its damages arising out of the Ventron litigation from RML and numerous other defendants under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq.; the Resource Conservation and Recovery Act of 1976 (“RCRA”), Pub. L. No. 94- 580, 90 Stat. 2795 (1976), as amended 42 U.S.C. § 6901 et seq.; the New Jersey Spill Compensation and Control Act, N.J. Stat. Ann. § 58:10-23.11 et seq. (West 1992); the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.; and the common law. [3] RML, which formerly was known as F.W. Berk & Co., Ltd. (“Berk U.K.”), was the British parent corporation of the former F.W. Berk & Company, Inc. (“Berk U.S.”). According to Morton, RML was liable for contribution based on Berk U.S.’s operation of a manufacturing facility from 1929 to the 1950s “which . . . continued to result in the handling, storage, treatment, transportation, disposal, and/or release of solid and/or hazardous wastes . . . arоund the Berry’s Creek area.” J.A. at 102- 03. [4]
On March 13, 1997, RML filed a motion in the district court seeking to dismiss Morton’s contribution claim against it for lack of personal jurisdiction. The parties engaged in discovery on the jurisdictional issue following which, as we have indicated, on March 30, 1999, the court granted RML’s motion (“RML Dismissal Order”). [5] At that time Morton did not file a motion seeking an order *8 certifying the RML Dismissal Order as final and appealable pursuant to Fed. R. Civ. P. 54(b) (“Rule 54(b)”), and it has not done so since. As we also have indicated, on July 23, 2001, the district court entered summary judgment in favor of defendant Tenneco and dismissed Morton’s complaint as to Tenneco (“2001 Tenneco Order”). Then, on October 23, 2001, the court entered the consent order dismissing the action without prejudice as to the remaining defendants (“2001 Dismissal Order”). [6] As of October 23, 2001, the court had dismissed the action as to RML for lack of jurisdiction, granted Tenneco summary judgment on the merits, and dismissed the action without prejudice against the remaining defendants by consent. Thus, as there were no remaining defendants, the court on October 25, 2001, marked the case “closed” on the docket. Nevertheless on October 29, 2001, at Morton’s request in a motion it filed before the entry of the 2001 Dismissal Order, the district court entered an order certifying the 2001 Tenneco Order as final and appealable pursuant to Rule 54(b).
On November 27, 2001, Morton filed an appeal from the 2001
Tenneco Order (“Tenneco Appeal”). On September 16, 2003, we
vacated the 2001 Tenneco Order and remanded the case for further
proceedings. Morton Int’l, Inc. v. A.E. Staley Mfg. Co.,
On October 6, 2004, Morton filed an appeal from the March 30, 1999 RML Dismissal Order. Plainly, Morton measured the time for appeal from the 1999 RML Dismissal Order from the time of entry of the 2004 Tenneco Order, for if it measured the time from the entry of the RML Dismissal Order or from the entry of the 2001 Dismissal Order, the appeal would have been grossly untimely. See Fed. R. App. P. 4(a)(1)(A). Thus, Morton implicitly regarded the 2004 Tenneco Order as the final order in this case.
On Dеcember 16, 2005, RML filed its motion to dismiss for will refer to the order as having been entered on the latest of the three dates, March 30, 1999.
[6] The dismissal order was filed on October 19, 2001, but was not entered on the docket until October 23, 2001.
lack of appellate jurisdiction. [7] According to RML, Morton’s appeal is premature inasmuch as the 1999 RML Dismissal Order was not final when entered because other defendants then remained in the case, the 2001 Dismissal Order dismissing all of the then remaining defendants without prejudice did not render the RML Dismissal Order final, and the 2004 Tenneco Order did not render the RML Dismissal Order final. [8] Morton opposed the motion. The motions panel referred the motion to a merits panel, and on June 7, 2006, we heard oral argument on the appeal. We will dismiss the appеal as premature notwithstanding the elapse of more than seven years since the entry of the order from which Morton appeals.
III. DISCUSSION
Ordinarily the proceedings in a district court must be final as
to the all causes of action and parties for a court of appeals to have
jurisdiction over an appeal under 28 U.S.C. § 1291.
[9]
Andrews v.
United States,
Accordingly, unless the district court directs the entry of a
final judgment as to that order pursuant to Fed. R. Civ. P. 54(b), an
order, such as the RML Dismissal Order, in which the district court
dismissed one defendant for want of personal jurisdiction but other
defendants remained, could not in itself be a final order for purposes
of appeal when the court entered it. See Special Invs., Inc. v. Aero
Air, Inc.,
Furthermore, the court, by dismissing the remaining defendants on October 23, 2001, after it entered the 2001 Tenneco Order, did not render the March 30, 1999 RML Dismissal Order final. The general rule that once all claims against all parties have been dismissed a prior order will become final for purposes of appeal under 28 U.S.C. § 1291, see e.g. , Ragan v. Tri-County Excavating, Inc., 62 F.3d 501, 505 (3d Cir. 1995), does not apply in this case because the district court’s order entered on October 23, 2001, dismissed all remaining defendants without prejudice and expressly contemplated *11 that Morton could refile the action if the parties were unable to resolve their dispute through a non-binding alternative resolution process. Moreover, the 2001 Dismissal Order contained comprehensive provisions tolling the running of any and all applicable statutes of limitations, and Morton, in opposing RML’s motion to dismiss this appeal, did not contend and never since has contended that the tolling provisions are not still in effect. Thus, Morton does not argue that it no longer can initiate litigation arising out of the basic controversy in this case against the defendants dismissed without prejudice in the 2001 Dismissal Order.
The principle that, “[w]hen a District Court dismisses a case
pending settlement, and grants the Appellants leave to re-file within a
set period of time, the order cannot be considered final for the
purposes of appeal on the date it was entered,” Berke v. Bloch, 242
F.3d 131, 135 (3d Cir. 2001), governs this case. Only “if terms are
reached, and/or the plaintiff makes no attempt to re-open the
litigation, [will] the order ripen[] into a final, appealable order upon
the expiration of the fixed time period.” Id. Thus, “an order
dismissing a complaint without prejudice is not a final and appealable
order, unless the plaintiff no longer can amend the cоmplaint because,
for example, the statute of limitations has run, or the plaintiff has
elected to stand on the complaint.” Newark Branch, N.A.A.C.P. v.
Town of Harrison,
The reason for the dismissal without prejudice exception to
the general rule that an order in a case is final for purposes of appeal
when the court has dismissed the case as to all claims and parties is
obvious, as the treatment of dismissals without prejudice as not being
*12
final “disallows the manipulative plaintiff from having his cake (the
ability to refile the claims voluntarily dismissed) and eating it too
(getting an early bite at reversing the claims dismissed
involuntаrily).” Marshall v. Kansas City S. Ry. Co.,
Several of our cases demonstrate the application of finality
rules when cases are dismissed without prejudice. In Tiernan, for
example, we pointed out that the plaintiffs initially retained the ability
to reinstitute part of the litigation following the dismissal without
prejudice of some, but not all, of the defendants.
Here, in its 2001 Dismissal Order dismissing the action as to the defendants remaining without prejudice after Tenneco and RML were out of the case, the district court expressly contemplated that there could be “subsequent proceedings . . . in the event litigation is resumed.” RML Mot., Ex. D at 2. The order also provided that “the Parties may re-file claims against each other” if they are unable to settle the dispute in “informal, non-binding alternative dispute resolution procedures.” RML Mot., Ex. D at 4. In addition, the district court specifically stated that the dismissal “shall not constitute an adjudication on the merits.” RML Mot., Ex. D at 3. Unlike the order in Blair directing the parties to arbitrate, which left nothing for the court to do but to execute the judgment, the 2001 Dismissal Order did not compel the parties to participate in binding arbitration. The order merely afforded the parties the opportunity to participate in non-binding alternative dispute resolution procedures and *13 contemplated that there could be further litigation should the non- judicial resolution process fail.
Furthermore, unlike the plaintiffs in Tiernan, Morton has not
renounced its intention to take further action against the defendants.
See
We reject Morton’s contention that the 2001 Dismissal Order
is nonetheless final because, although “there might be a new action
sometime in the future based upon the same controversy,” Morton
Opp’n at 7 (emphasis added), “there is nothing in the dismissal orders
that will allow Morton to reinstitute the current action.” Morton
Opp’n at 7 (emphasis added) (citing Aluminum Co. of Am. v. Beazer
East, Inc. (ALCOA),
We concluded that we had jurisdiction over the appeal despite the fact that the consent order “le[ft] other issues relevant to the controversy - and therefore, certain of the parties’ claims - still to be resolved through a separate arbitration or mediation process[,]” id. at 559, because “every issue that was left unresolved [i.e., non-liability issues] after trial [had] been removed from the [district] cоurt and referred to arbitration/mediation. The consent order guarantees that there will be no further proceedings before the district court in this action.” Id. We explained that the district court “accomplish[ed] all that the parties asked the court to accomplish,” id. at 560, and “subsequent judicial proceedings to enforce, confirm, or vacate an arbitration award are regarded as distinct matters, and the possibility of their occurrence does not deprive the district court’s order in the original proceeding of its finality.” Id. at 561. After our review of the quoted language from ALCOA in its
proper context, we are satisfied that that case does not support a
conclusion that the without prejudice 2001 Dismissal Order in this
case is final. Here, Morton may refile its claims should the alternative
dispute resolution procedures fail as the dismissal order expressly
allows it to do so. Despite the district court’s characterization of such
a refiling as “subsequently-initiated litigation,” see RML Mot., Ex. D
at 4, the district court to date has not “accomplish[ed] all that the
parties asked the court to accomplish” merely by allowing the parties
to resolve their differences in a non-judicial setting. See ALCOA,
*16
Our holding in LNC Invs. LLC v. Republic Nicaragua, 396
F.3d 342, 347 (3d Cir. 2005), further supports the principle that a
dismissal order that contemplates that there may be a future action
based on the same controversy does not constitute a final order for
purposes of appeal. In LNC Invs., we did not consider final “LNC’s
voluntary dismissal without prejudice of the pending garnishment
actions against [defendant’s former parent companies]” inasmuch as
the order did “not effectively bar a future garnishment action against
the parent companies arising from the [disputed agreement].” Id.
(emphasis added). Similarly, in Patten Sec. Corp. v. Diamond
Greyhound & Genetics, Inc.,
district court expressly dismissed certain of the defendants and certified the order as final under Rule 54(b). However, because the district court “fail[ed] to exрlicitly include [the remaining dismissed] claims within the Rule 54(b) final judgment,” the court of appeals dismissed the appeal from the order dismissing the remaining claims, which the district court had not certified under Rule 54(b). Id. Of course, entry of the 2004 Tenneco Order does not lend any finality to the case as that order, which provided for a dismissal without prejudice, was not final in itself and the court never certified it as final under Rule 54(b).
[13] We held, however, that we had jurisdiction over the appeal by
reason of the applicability of what we described as the “metaphysical
Enelow-Ettelson doctrine,”
[14] The Delgrosso order resеmbled the 2001 Dismissal Order inasmuch as it stated in part:
Nothing contained in this order shall be considered a dismissal
or disposition of this matter and, should further proceedings in
it become necessary or desirable, either party may initiate it in
*17
The approach to finality that we take here and took in LNC
Invs., Patten, Delgrosso and numerous other cases is consistent with
the approach of other courts of appeals. For example, the Court of
Appeals for the Second Circuit has held that “a dismissal without
prejudice [that] does not preclude another action on the same claims”
will not be considered final for purposes of appeal. Chappelle v.
Beacon Commc’ns Cоrp.,
Contrary to Morton’s assertion, the words “Case closed”
entered on the docket sheet on October 25, 2001, are not dispositive
on the question of whether the 2001 Dismissal Order and thus the
earlier RML Dismissal Order are final. An order reciting that no
further action is contemplated and directing the clerk to mark the case
closed does not become final for purposes of appellate jurisdiction
merely by reason of the execution of that order and its entry on the
docket.
[15]
Delgrosso,
[15] Of course, it will be final if the other bases for finality are present, e.g., the court has dismissed the case with prejudice as to all claims and all parties. But if those bases are present, the case will be final for purposes of appeal even if the court has not marked the case closed on the docket.
We also draw on our own experience in recognizing that a district court does not render a matter final for purposes of appeal merely by marking the docket in the сase with the notation “Case closed.” In fact, our experience teaches us that sometimes a district court will mark a case closed when it could not possibly be final for purposes of appeal. See Penn West Assocs., Inc. v. Cohen, 371 F.3d 118, 128 (3d Cir. 2004). We believe that there is not an inconsistency in marking a case closed even though the court has not entered a final order in the case for appeal purposes as district courts mark cases closed for unassailable administrative reasons when they contemplate that there will not be further proceedings in them. For example, as happened here, it is appropriate for a district court to mark the docket as “case closed” even though the court dismissed the action without prejudice and there was no impediment to a party seeking to reinstate the case. In this regard, we point out that it is entirely reasonable for a court to mark such a case as closed though the court has not entered a final order in the case for appeal purposes because frequently the parties do not reinstitute cases dismissed without prejudice.
In sum, the 2001 Dismissal Order dismissing all remaining
defendants on October 23, 2001, was not a final order and thus did
not lend finality to the March 30, 1999 RML Dismissal Order. The
2001 Dismissal Order dismissing the remaining defendants without
prejudice did not purport to end the litigation on the merits and
specifically contemрlated that there could be subsequent proceedings
in which the litigation over the controversy would resume.
Accordingly, the 2001 Dismissal Order fails to satisfy the traditional
requirement for a judgment to be final and therefore cannot lend
finality to the earlier order dismissing RML. See Quackenbush, 517
U.S. at 712,
Finally, we should not close our opinion without commenting on an inconsistency in Morton’s position. Morton’s argument that its appeal is not “too early” is predicated on the premise that the district court disposеd of the case against the last remaining defendant when it entered the 2004 Tenneco Order dismissing the action without prejudice as to Tenneco. However, if we accept this proposition, Morton’s appeal of the RML Dismissal Order is too late inasmuch as the district court dismissed the remaining defendants in the 2001 Dismissal Order after it granted Tenneco summary judgment in the 2001 Tenneco Order, but Morton’s appeal would be untimely if *19 measured from either of those orders. The point we make is necessarily true because both the 2001 Dismissal Order and the 2004 Tenneco Order dismissed the defendant or defendants remaining at that time without prejudice. Thus, if the 2004 Tenneco Order was final for purposes of an appeal then the 2001 Dismissal Order was similarly final because at that point there were no remaining defendants in the case.
In explaining that its appeal “is not too late,” Morton claims that the orders entered in 2001 were not final because this court subsequently entertained Morton’s appeal as to the 2001 Tenneco Order and remanded the case against Tenneco for further proceedings. Morton Opp’n at 4. According to Morton, “[a]ll claims against all parties were not effectively disposed of since this Court remanded for further proceedings the claims against Tenneco.” Morton Opp’n at 4.
This argument plainly is flawed inasmuch as neither the filing of nor the disposition of the Tenneco appeаl would have altered the period during which Morton timely could have appealed from the RML Dismissal Order, if Morton could have filed such an appeal prior to the proceedings on the Tenneco Appeal. Moreover, the Tenneco Appeal did not affect or alter the finality or lack of finality of the previously entered RML Dismissal Order and the 2001 Dismissal Order. This principle is demonstrated by our opinion in New Castle County v. Hartford Accident & Indem. Co., 933 F.2d 1162, 1180 (3d Cir. 1991), in which we indicated that “we know of no case that says that an order that is ‘final’ when an appeal is taken can be rendered non-final by a later decision of the appellate court.” Any other rule would invite judicial chaos аs it would mean that after a court of appeals adjudicated an appeal, at least if its disposition remanded the case as it did on the Tenneco Appeal, a party would be able to appeal from an order entered prior to entry of the order from which the appellant initially had appealed. Thus, if we accepted Morton’s argument with respect to the effect of the Tenneco Appeal and the subsequent entry of the 2004 Tenneco Order, we would be permitting parties to take serial appeals from orders entered prior to entry of the final order permitting the original appeal. We certainly will not do that.
Accordingly, inasmuсh as the finality of an underlying order is not affected or altered by a later appeal, the appeal and even a reversal or vacation of an order that a district court has entered does not reactivate the period during which a party may appeal from orders from which it has not appealed already. Therefore, if Morton could *20 have appealed from the RML Dismissal Order after we vacated the 2001 Tenneco Order on September 16, 2003, and the district court entered the 2004 Tenneco Order, on the theory that the RML Dismissal Order became final when the district court entered the 2004 Tenneco Order, it necessarily follows that the RML Dismissal Order had to have been finаl years earlier which it was not. Thus, Morton is caught in a trap of its own making because if we accept its argument that its appeal is not premature then we must hold that it is too late.
IV. CONCLUSION
For the foregoing reasons, we will grant RML’s motion to dismiss this appeal for lack of subject-matter jurisdiction.
Notes
[1] The other defendants have not participated in this appeal.
[2] The extensive background to the Berry’s Creek litigation is not
directly germane to the basis on which we dispose of this appeal, and
thus we need not set it forth in full. For a comprehensive statement of
the underlying facts and background, see Morton Int’l, Inc. v. A.E.
Staley Mfg. Co.,
[3] “J.A.” refers to the joint appendix submitted by counsel for Morton. “RML Mot.” refers to RML’s motion to dismiss for lack of appellate jurisdiction that RML submitted to this court on December 16, 2005. “Morton Opp’n” refers to Morton’s opposition to RML’s motion to dismiss submitted to this court on January 5, 2006. “RML Reply” refers to RML’s reply in further support of its motion to dismiss submitted to this court on January 13, 2006.
[4] Berk U.S. dissolved in 1960.
[5] The order was dated and signed by the court on March 26, 1999, but the stamp of its filing date indicates that it was not filed until March 29, 1999, and the docket sheet indicates that it was entered on March 30, 1999. These variations do not affect our analysis, and we hereinafter
[7] Prior to the filing of its motion to dismiss for lack of appellate jurisdiction, RML filed a motion for summary action based on the alleged lack of appellаte jurisdiction. We denied without prejudice RML’s motion for summary action to allow the parties to present the jurisdictional issues to a merits panel.
[8] RML alternatively argued that Morton’s appeal is “too late” because “there was a decision in October 2001 that fully resolved all claims presented in the district court . . . [and therefore] Morton’s appeal is approximately three years too late.” RML Reply at 2. Of course, inasmuch as we find that the appeal was too early, it cannot have been too late.
[9] The parties dispute whether we have appellate jurisdiction under 28 U.S.C. § 1291; Morton does not suggest that we have an alternative basis to exercise jurisdiction, and we find none.
[10] Notably, Morton has had several opportunities to seek to have the district court render the March 30, 1999 RML Dismissal Order final, or to take steps itself to render the RML Dismissal Order final, but has failed to do so. For example, Morton could have sought certification from the district court pursuant to Rule 54(b) that the RML Dismissal Order was final and appealable, but it has not done so. Alternatively, Morton could have stipulated to a dismissal with prejudice as to the remaining defendants. Finally, as we have indicated, Morton could have disavowed any intention to take further action against the Berry’s Creek defendants, but when we gave it the opportunity to do so at oral argument, it rejected that invitation.
[11] We are satisfied that the 2001 Dismissal Order did not contemplate the possibility that the parties would engage in a binding alternative dispute resolution process because the order provided that “the Parties shall participate in informal, non-binding alternative dispute resolution procedures to explore opportunities for settling the matters in controversy among the Parties.” RML Mot., Ex. D at 4. Thus, this case differs from ALCOA, in which the dismissal of the district court action was to be followed by “a private binding mediation/arbitration process.” ALCOA, 124 F.3d at 556 (emphasis added). But even if the 2001 Dismissal Order had allowed the parties to engage in a binding arbitration process, our result would have been the same inasmuch as only a mandatory requirement that the parties engage in such a process to resolve the substantive issues to the exclusion of other procedures could have foreclosed the possibility that there would be future litigation regarding the basic controversy. Of course, if a case is dismissed without prejudice and the parties agree to engage in binding arbitration at a later date, then the order of dismissal without prejudice will become final at that time for purposes of appeal because the possibility of future litigation regarding the basic controversy will be foreclosed.
[12] We also note that the district court’s certification of the 2001
Tenneco Order as final and appealable under Rule 54(b) on October 29,
2001, did not lend finality to the previously entered RML Dismissal
Order, as the court did not certify the RML Dismissal Order as final
under Rule 54(b). A party in a case involving multiple defendants
seeking to appeal from the dismissal of one defendant may not appeal
from the dismissal order unless the trial court certifies the particular
order from which it seeks to appeal as final under Rule 54(b). See
Matthews v. Ashland Chem., Inc.,