Thomas Hooks, a Minor, by Harlin Hooks, His Father and Next Friend v. Washington Sheraton Corporation, a Corporation

On for the accident. bility MIKVA, Circuit Before TAMM and verdict, dis- as the day same GESELL,* A. Judges, and GERHARD entered trict court clerk Judge for the Dis District United States Feder- 58(1) of the pursuant to Rule trict of Columbia. Procedure. al Rules Civil new trial or a motion for Sheraton filed filed Circuit Opinion 2, 1976, the and, July district remittitur Judge TAMM. trial a new ruled it would order of all remittiturs plaintiffs filed Judge Circuit unless Dissenting opinion filed $4,680,000. Plaintiffs damages in excess of MIKVA. * by designation pursuant Sitting to 28 U.S.C. 292(a) (1976). judgment.” recovery. On U.S.C. § the reduced accept

agreed statute, however, language of this does court entered the district July define when an pursuant that amount judgment on final deemed to have occurred a case such as 54(b). us, we must seek the one before and so that in- timely request Plaintiffs made guidance.2 other jury the date of the accrue from terest but judgment, verdict and clerk-entered parties agree request abey- district court held is rule point, applicable, reference if ap- pending ance resolution Sheraton’s provides determining which a method for and dam- liability peal questions on the involving judgment when a is final in cases court affirmed ages. appeal, On that claims. v. U. S. Lines multiple See after the remitti- as entered judgment Cir.), Co., 413, (2d cert. 311 F.2d 416-17 tur, but did not address the Imparato Stevedoring nom. denied sub Washington v. interest. Hooks Shera- See Co., v. Lines 374 U.S. Corp. United States (D.C.Cir. 1977). Corp., ton 578 F.2d 313 1871, (1963); 10 L.Ed.2d 1055 83 S.Ct. Miller, Wright A. Federal Practice C. & affirmance, plain After this court’s (1973); 6 at 90-91 & Procedure § request tiffs renewed their to the district ¶ 54.42, (2d at 814 Practice Moore’sFederal from the date of the court for interest 1976). Curtiss-Wright Corp. v. also ed. See judgment. verdict and clerk-entered On 1, 11-12, Co., General Electric denied July the district court 1460, 1466-67, (1980); 64 L.Ed.2d noted that plaintiffs’ motion. The court Redding & Co. v. Russwine Construction pending third-party there had been claims 1969).3 (D.C.Cir. Corp., 417 F.2d entered judgment at the time the had been 54(b) provides; no by the clerk and that there had been 54(b) express finding under relief is for When more than one claim despite the would be final action, as a in an whether presented third-party claims.1 presence cross-claim, those claim, counterclaim, or timely appeal Plaintiffs filed a from this claim, multiple par- or when third-party decision. involved, may the court direct ties are as to one or entry of a final

II. claims or than all of the more but fewer only upon express an determina- parties peri- Plaintiffs seek interest for the time delay 27,1975, j'ust reason for of their tion that there is no od from the date for upon express and an direction verdict and clerk-entered until 30,1976, In the absence entry judgment. which the district July the date on direction, or- any such determination and court entered a final under rule decision, form of however 54(b). section 1961 title inter- der or other Under fewer than adjudicates which entry designated, is calculated “from the of the est date later, plaintiff days finally wrong for the shall con- for a 1. Four the district court summary granting firmed its earlier decision Ann. § bear interest.” 15 D.C.Code third-party interpret on Paddock’s claims. court would We believe that a local applicable procedur- this statute in terms of the sitting 2. A federal court should Proce- al rules. Federal Rules of Civil Because upon allow interest a verdict if such interest 54(b) apply modification dure 58 and would be allowed law. See Klaxon Co. local courts, a local court the District of Columbia Co., v. Stentor precedent for would therefore turn to federal - (1941); 85 L.Ed. 1477 v. Arkansas Casto guidance in such a situation. Louisiana Gas 562 F.2d 622 1977). Note, generally Judg- Interest on primary purpose is to deter- 3. The Courts, ments in the Federal L.J. 1019 Yale appeal. purposes of See 10 C. mine (1955). Unfortunately, statutory neither local 2654; Miller, Wright supra, 6 Moore’s & A. provides any guidance law nor case law on this " 54.20, Practice, 54.27[l]-[2], supra, point. merely The District of Columbia statute damages states that an action to recover “[i]n clerk-entered Under collat liabilities rights or and claims all the shall not parties doctrine, may than all eral a “collateral” order of fewer order final, the action despite terminate be absence of a considered or other order parties, determination, claims or if “it a final subject revision at decision is form of which disposition right of a claimed is not before the any time of the cause of action and ingredient rights all adjudicating the claims it,” require does not consideration parties. of all the liabilities least if the collateral matter that has been added).4 54(b) (emphasis Fed.R.Civ.P. is “too impor decided district indepen tant be review and too denied plain- which Throughout period interest, require that there re- dent of the cause itself to tiffs claim the additional until appellate Pad- consideration be deferred mained pending recovery of against its adjudicated.” dock insurers case is Cohen whole Thus, this case litigation expenses.5 Corp., its 337 Beneficial Industrial Loan U.S. multiple claims and 1221, 1225-26, 93 would involve appear 541, 546-47, 69 L.Ed. S.Ct. governed by would to be appear therefore (1949). Redding & Co. v. Rus 1528 See court, 54(b). rule The district the terms of 721, F.2d Corp., 417 726 swine Construction 54(b) however, express an rule did not make Wright A. (D.C.Cir. 1969); 10 & n.33 C. at time of the clerk-en- determination 67-73; Miller, 6 Moore’s supra, § made such a judgment, but instead tered Practice, supra, In the 154.31. when court later entered ruling only col plaintiffs urge a “reverse present According- judgment after the remittitur. theory, maintaining order” that lateral control, 54(b) if rule does the clerk-en- ly, be their should clerk-entered plaintiffs’ tered was not final and scope and outside considered final must there- claim for the additional interest remaining third-par 54(b) rule because the fore fail.6 this were collateral to ty claims Paddock however, contend, that rule Plaintiffs

54(b) apply does not in this case because We that the collateral order believe

Paddock’s claims were “collat- doctrine, or in applied whether usual dispute the basic resolved eral” to Corp., Being primarily 338 to a v. 4. directed determination Petroleum Conversion 322, 325, (1950). finality purposes appeal, 3 94 L.Ed. 299 see note su- 70 S.Ct. for 54(b) gives pra, rule the district discre- certify or indemnity tion decision on one more Although claims for 5. Paddock’s (but all) ready appeal. is not of the claims for when determined were rendered moot Curtiss-Wright Corp. See v. Electric General any damages, for Paddock was not liable Co., 1460, 64 446 U.S. 100 S.Ct. L.Ed.2d expenses litigation for survived (1980). result, can As a the district court func- jury verdict. “dispatcher,” announcing, if it tion as a finds it so, to do have no fur- will Ohio-Sealy upon primarily 6. The dissent relies partial ther to a dis- modifications or additions Inc., Sealy, Mfg. F.2d Mattress Co. appellate position, and thus that it believes denied, 1978), 440 U.S. cert. partial disposition proceed review of the can (1979). 59 L.Ed.2d 486 There being the district court’s disturbed it, explicitly distinguished the case before the case. resolution of Sears, remainder of involving types merely two one claim for Mackey, 351 U.S. Roebuck & Co. v. relief, involving more one from than cases 895, 899, (1956). 76 S.Ct. 100 L.Ed. 1297 relief, “squarely which fall claim for cases requirements express “an determination governs which within delay” just that there is not reason for and “an ” Contrary to the . Id. at dissent’s ... judgment” express direction for assertion, recognized expressly this court “provide[ were added to the in 1948 to ] Co., authority v. U. S. Lines opportunity litigants from for obtain (2d Cir.), Imparato sub nom. cert. denied of what District Court clear statement Stevedoring Corp. Lines v. United States finality, intending court is with reference to 10 L.Ed.2d denied, litigant if such direction can at is protect accordingly.” Dickinson least himself fashion,7 inapposite is in the was not a “reverse” a valid doctrine of this case. The circumstances which Accordingly, interest could attach.9 proce- remedial and applies only to certain Judge Gasch’s denial of from the interest separable dural that are from and matters time of the clerk-entered ingredients any identifiable claims Affirmed. apply, for relief. It does not and therefore 54(b) when the “collater- applicable, MIKVA, Judge, dissenting: Circuit claims for al” matters themselves constitute relief. have As two notable commentators compelled am to dissent the deci- from observed: sion of my colleagues because the reference Without the better view is points used in in- majority opinion aré 54(b) only that Rule when there applies appropriate. from the Wholly apart ques- multiple are claims and the collateral or- tion of whether federal law is applies der doctrine to the determination case,1 majority’s reliance really ingredi- of a matter that is not an deny post-verdict ent of identifiable claim. A “claim” ignores served purposes the different for purposes of the collateral order doc- rule of and a rule that commences trine, request security like the running of interest. Cohen, costs in is not a “claim for relief” authorizing provision substantive within the of Rule inas- meaning allowance of interest in federal courts is much as the rule refers to claims in Code, section 1961 of the Judicial 28 U.S.C. being the sense of the right substantive 1961 provides This section that § asserted —the cause of action—-rather any money “interest shall be allowed on than to the requests that are incidental in a in a civil case recovered procedure judicial a award obtaining district court shall be calculated from [and] enforcing it. the date entry at the Miller, 10 Wright supra, C. & A. by rate allowed law.” State added, (emphasis omitted). 71 footnotes Practice, supra, See 6 Moore’s Federal majority opinion suggests The be- Paddock’s claims third-party “judgment” 1154.31. cause is not defined in section relief, plainly are independent claims for 1961, they must refer sources to to other claims based on the of insurance con- terms why. determine its I fail to see meaning. tracts that it had with its insurers. See meaning believe that the of the word Johnson, (8th Sargent v. 521 F.2d 1260 Cir. “judgment” in section 1961 is best as- 1975).8 Thus, the collateral order doctrine by examining certained the reasons for al- does not apply, provisions and the of rule lowing interest on claims. Inter- litigated 54(b) control. est withholding is the cost of the amount plaintiff

Because the not make a owed the once sum has been district court did 54(b) determination, rule the proceeding. clerk-entered determined in a court Gemert, applying 7. Boeing For a case the “reverse collateral here. See also Co. v. Van theory, order” see Swanson v. American Con- 479 n. 750 n. Indus., Inc., (7th sumer Jones, 517 F.2d 560-61 (1980); L.Ed.2d 676 Richerson v. 1975). Cir. 1977). (3d 921-22 Cir. rely 8. Plaintiffs on Swanson v. American Con- argues 9. Sheraton that even if were Indus., Inc., 1975). sumer 517 F.2d 555 inapplicable, proper the date from which to Swanson, In the court held the collateral order begin computing interest would be the date of doctrine to a district court’s determi- post-remittitur judgment. Having the resolved attorney’s paid nation of the fees to be a under 54(b), this case on the basis of rule we have no theory “fund” in a class action. See id. at argument. occasion to address this allegedly 560-61. The “collateral” matters present case, hand, the on the other are distinct relief, cases, relying claims for on In the allowance of interest provisions of insurance contracts. We do a of state law. See note infra. ruling applies not believe that the Swanson plain- majority wrong that the turns to the rule. jury’s verdict is an assessment 58(1) provides “upon date is returned damages general as tiff’s clerk, If the damages. as jury and includes interest verdict of a ... unless the orders, on the date pre- to be made whole shall plaintiff is court otherwise forthwith during be allowed interest must payment, pare, sign and enter without payment. between verdict period direction the court.” The awaiting “judgment” term in rule is the same of third presence neither the In this is no term used section 1961. There changes the claims nor the remittitur party applica- reason not to consider section 1961 damages were as- plaintiffs’ fact that the Indeed, judgment. ble a rule 27,1975-the date which sessed as of May 58(1) was to avoid the de- purpose of was entered as a jury the verdict lays previously encountered between the originally sued plaintiffs and the time verdict Paddock, company both Sheraton judgment by verdict as a order of the filed third pool. that built Paddock Kaplan, court. Amendments of the its insurers for complaints against party Procedure, Federal Rules of Civil 77 Harv. litigation expenses and indemnification in (“Rule (1964) had always L.Rev. was liable. The the event Paddock found and, urged speed complicated as to the less against Sheraton jury returned a verdict it told jury, determinations court or any responsi- only and absolved Paddock prepare clerk to and enter him- was still It is true that Paddock bility. self, judge, from the prompting claiming litigation from insur- expenses directed.”). judge unless the otherwise is hardly ers-but this reason That rule 58 allows the clerk enter on the amount deny plaintiffs as validity does not lessen plaintiffs Sheraton owed the under the id. judgment. See duly terms of a entered 58 of judgment under rule It is relied true that Rules Civil Procedure. opposite reaching conclu- majority sion, judgments entry to states that not all are final subsequent It is true that the appeal. But neither case purposes this the district court ruled that judgment law nor that a suggests the entire overturned un- statute verdict would be purposes appeal be final for before less the re- must plaintiffs agreed to reduced $4,680,000. purposes. for other ruling But this mere- can be covery that, 1975, change or limit modify, Rule does not ly May indicates as of $4,680,000 owing meaning of the term That sum of was due and to the so, subject 58 is to being the fact that rule plaintiffs as the result of a determination in 54(b) operates only provisions ver- of rule to proceeding. reducing a court In entered un- dict, finality judgments limit the the trial held that a reasonable judge not section 1961 does a verdict of not der rule 58. Since would have returned judg- final $4,680,000 27,1975. of interest to than limit the allowance more The ments, interest I see no reason not allow plain words of section 1961 mandate that judgments.2 on all rule 58 interest be allowed on that sum from that date forward. Appeals Seventh Court indis- in the interest in a case guidance sought

Even if must be Circuit has allowed Procedure, In I the one at bar.3 tinguishable Federal Rules of Civil believe from deciding begins supported by opinion case to run in This construction when interest 307, 68 at 1040. Supreme Briggs Pennsylvania before it. Id. at S.Ct. v. Court in Ry., 334 U.S. 92 L.Ed. 1403 addressing logic suggest- of the Sev Briggs, In 3. Rather than reasoning, majority might chooses enth Circuit’s ed that section 1961 even allow interest Ohio-Sealy distinguish the basis of prior entry on a verdict as a Caputo States v. United court’s distinction of under rule 58-but did need to determine denied, Cir.), (2d F.2d 413 cert. Lines Inc., Sealy, though judg- verdict. Even no Mfg. Co. v. Ohio-Sealy Mattress argued (1978), the defendant 585 F.2d 821 ment had ever been entered in the trial should on a verdict as remitted court, that interest reviewing said that it was the verdict not be allowed from the date statute “to equity” within “the of the under rule 58. was entered as a of the verdict award interest from the date verdict been re- original Not had the where, plaintiff, fault of the mitted, parties claims between the other between the appreciable elapsed time has remittitur. were not until after the resolved rendition of the verdict and the of the Indeed, months twenty it was not until (footnote omitted). judgment.” Id. at 849 final, there was a after the verdict The court concluded that interest would be analyzed appealable, judgment. The allowed from the time the verdict should rule 58 1961 in interplay with section been entered as a under rule have exactly suggested the fashion above: 58. Id. with, Rule begin language To v. majority opinion Caputo cites clear. perfectly read with 1961 seems § Co., 331 F.2d 416- United States Lines Judgment promptly, is to be entered Cir.) denied, (2d cert. entry. interest runs from the date of (1963) sup 10 L.Ed.2d 1055 5.Ct. argument] find no merit in the [We only Caputo techni port holding. Not . pursuant . . absent an order of court case,4 from this cally distinguishable 54(b), Fed.R.Civ.P., there could be court assumed that finali Caputo no final judgment on which interest could ty meaning would determine the of the argu- run. difficulty The initial term 1961 without ex section ment is that 1961 does not in terms § planation or discussion of cases and require that a be final policies.5 id. at 416-17. Given the tying up sense of all the issues in a case. the Sev compelling analysis advanced Congress specify finality knew how to cannot be Sealy, enth Circuit intended, when it was see 28 U.S.C. regarded persuasive precedent as 2411, and it did not do so here. circuit. Id. at 845-46. from the complication A further arises Pratt,

In Ry. Louisiana & Arkansas Co. purely fact this case is not a matter of 1944), 142 F.2d the Fifth case, and, federal law. This is a Circuit should also indicated that above, the allowance of in- judgments. suggested be allowed on rule 58 In that erroneously the trial court set aside local law.6 It terest must be determined application 10 L.Ed.2d 1055 for its standards of (1963). Although 54(b) timing the Seventh initial Circuit’s rule to the of interest under sec- discussion of section 1961 and rules 58 and reasoning A tion 1961. discussion of the out, 54(b) thought subsequent is well at- Ohio-Sealy explanation why and an rule tempt distinguish is not. See 585 helpful is be more determinative would Regardless F.2d at 845-46. of whether the resolution of the issue before us than a properly Caputo, distinguished Seventh Circuit Ohio-Sealy dismissal of based on that court’s logic sup- of the Seventh Circuit’s decision attempt distinguish strained and erroneous ports the in allowance of interest the case at Caputo. supra. See note persuasive bar-and is more than the Second Caputo. Circuit’s in decision See text and Supreme 6. As far back as Court held 4-5, notes at notes infra. that section 1961 Caputo, actually In the trial court vacated the providing only judg- for interest on [w]hile prematurely granted. earlier In ments, power a does not exclude the idea of addition, although ignored point the court this upon in the several States to allow interest decision, reaching plaintiff in had not verdicts, and allowance is ex- where such appealed ques- from either and the statute, pressly we made a State consider properly tion of interest was not before the right given plaintiff, it a to a successful reviewing court. See 331 F.2d at 416. ought deprived a which he not to be re- moval of court. The his case to the Federal Caputo, 5. Like the court in and unlike the court, Ohio-Sealy majority gives no reason

621 use in- before the court deals question when necessary to consider is therefore in two substantive “judgment” word under the a tort claim is allowed on terest 1961 of 28 Title provisions-section This of Columbia. law of the District 15-109 of and section United States Code result, by a but the same brings us to pointed Pell out Judge the D.C. Code. As route. different knew how Sealy, supra, “Congress in verba not in haec law is Although D.C. it 585 finality when was intended.” specify is no discernible there with section import that job to at 546. It is not our F.2d difference: substantive in which portions of the law concept into for damages a an action to recover “[I]n see it. I specified has not Since Congress plaintiff for wrong cannot why no 58 reason interest.” bear shall of section purposes for “judgment” be a (1973). with section As 15 D.C.C. 109 or section Code 1961 of the United States defined “judgment” word being cer- 15-109 of the D.C. Code 11-946 of in the section. Section purposes elsewhere judgment” “final tified as a Code, however, the Federal makes on the D.C. the trial court I would reverse to all of Civil Procedure Rules question. this under a unless modified local court cases nor rule 58

specified Neither procedure. under local has modified been un- likely “judgment” I

law. think be in- statute would

der the local interest procedur- of the relevant in terms

terpreted rule-and, rule is rule 58

al in this of Civil Procedure. the Federal Rules majority that the respectfully suggest there was a “final

deciding whether or not 54(b) of the of rule

judgment” purposes Procedure when the Rules of Civil

Federal Judgments in State and Federal Verdicts courts State and the Federal courts Note, Courts, (1962); harmony Inter- sitting in 38 N.D.Law. 66 within should be the State Courts, Judgments 64 point. upon on est Miles, (1955) (“Even if section Yale L.J. Benefit Ass’n v. Massachusetts 689, strictly, 234, 235, if it is certain that 1961 is construed L.Ed. S.Ct. prevailing from interest Although only state law allows to state the Miles Court referred applies verdicts, to a allowing this state law Miles statutes Tomkins, cause of prior non-federal federal was decided to Erie R. R. Co. applied action”). past, (1938); have In the courts L.Ed. 1188 prior time, principle ver- statutory ap- even to a to allow interest law was state See, g., Joseph Trio sitting diversity. Bennett Co. v. e. E. plied Af- dict. federal courts Inc., Industries, (1st Erie, quoted 548-49 Miles with ter 1962) (question al- before approval, stressing of interest the allowance of inter- law; here, ways under state of state in federal est on verdicts should be same law, the time the from interest accumulates cases. Klaxon Co. state courts breached); 487, 497, obligation New was contractual v. Stentor Soileau, Thus, Casualty Co. L.Ed. Amsterdam 1948) (if can allow state has indicated that state law determines verdict, it can allow it date of interest from the whether is allowed on filed). Note, complaint generally Interest on from the date the cases. See

Case Details

Case Name: Thomas Hooks, a Minor, by Harlin Hooks, His Father and Next Friend v. Washington Sheraton Corporation, a Corporation

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 10, 1980

Citation: 642 F.2d 614

Docket Number: 79-1899

Court Abbreviation: D.C. Cir.