295 F.3d 421 | 3rd Cir. | 2002
Before: NYGAARD, ROTH, and WEIS, Circuit Judge s.(cid:13) (Filed July 3, 2002)(cid:13) J. Gerald Ingram, Esquire (ARGUED)(cid:13) 7330 Market Street(cid:13) Youngstown, Ohio 44512(cid:13) Attorney for Plaintiffs-Appellants(cid:13) Thomas R. Doyle, Esquire (ARGUED)(cid:13) Law Offices of Thomas R. Doyle(cid:13) Two Chatham Center, Suite 1750(cid:13) Pittsburgh, Pennsylvania 15219(cid:13) Attorney for Appellee(cid:13) OPINION OF THE COURT(cid:13) WEIS, Circuit Judge.(cid:13) The consent judgment and stipulation in this civil case(cid:13) provides for an end to the litigation only upon the(cid:13) affirmance on appeal of a controverted interlocutory order(cid:13) entered by the District Court. We conclude that the(cid:13) judgment is not final under 28 U.S.C. S 1291 and,(cid:13) accordingly, we lack appellate jurisdiction. We therefore will(cid:13) dismiss the appeal.(cid:13) In this diversity personal injury suit, plaintiff 1 sought(cid:13) damages from Dairy Farmers of America, Inc., and other(cid:13) defendants. The parties consented to trial by a magistrate(cid:13) judge pursuant to 28 U.S.C. S 636(c)(1). During the course(cid:13) of the litigation, on April 3, 2001, the magistrate judge(cid:13) ruled that the plaintiff ’s claim for damages would be(cid:13) restricted because she had failed to follow the District(cid:13) Court’s pretrial rules with respect to the production of the(cid:13) report of one her medical experts.(cid:13) After settling with the other defendants on pro rata(cid:13) releases, the plaintiff agreed to enter into a consent(cid:13) judgment with Diary Farmers of America, Inc. In(cid:13) accordance with a stipulation between the parties, the(cid:13) District Court entered a consent judgment "in favor of(cid:13) _________________________________________________________________(cid:13) 1. Although the husband is listed as a plaintiff, his damages are limited(cid:13) to loss of consortium, a derivative claim. We will refer to plaintiff in the(cid:13) singular.(cid:13) 2(cid:13) Plaintiffs Suzanne L. Verzilli and Larry Verzilli in the(cid:13) amount of $13,000. Plaintiffs expressly reserve their rights(cid:13) of appeal, and Defendant Dairy Farmers of America, Inc.(cid:13) expressly denies any admission of liability." The Court also(cid:13) stated in the judgment that "[t]his is a final order and there(cid:13) is no just cause for delay."(cid:13) In the stipulation that was filed together with the consent(cid:13) judgment, the parties agreed that if this Court reversed,(cid:13) ". . . defendant, Dairy Farmers of America, Inc., will be(cid:13) permitted to present a full and complete defense to all(cid:13) issues in this case (damage and liability).(cid:13) "The parties agree that there will be no further(cid:13) proceedings in this case unless the Court’s order of(cid:13) April 3, 2001 [pretrial ruling on damages] is reversed(cid:13) on appeal.(cid:13) "It is further understood and agreed that the consent(cid:13) judgment of April 19, 2001 is a final appealable order(cid:13) pursuant to 28 U.S.C. S 1291."(cid:13) The plaintiff has appealed, contending that the District(cid:13) Court erred in the pretrial ruling limiting her damages.(cid:13) Before addressing the merits, we must determine if this(cid:13) Court may entertain the appeal.(cid:13) In the jurisdictional section of her brief in this Court,(cid:13) plaintiff wrote, "The April 3, 2001 Consent Judgment was a(cid:13) ‘final order’ and determined that there was no just cause(cid:13) for delay." No further elaboration or discussion of appellate(cid:13) jurisdiction was presented. The defendant’s brief did not(cid:13) mention the issue. Because both parties had failed to(cid:13) clarify appellate jurisdiction, the Court advised them in(cid:13) advance that they should be prepared to discuss the matter(cid:13) at oral argument.(cid:13) The jurisdiction of the Courts of Appeals is limited, and(cid:13) they lack authority to review an appeal unless specified(cid:13) requirements are satisfied. In general, an appeal must be(cid:13) taken from a final decision under 28 U.S.C. S 1291. Some(cid:13) exceptions exist, such as appeals from preliminary(cid:13) injunctions or the certification of determinative questions of(cid:13) law under 28 U.S.C. S 1292(b). Other appealable(cid:13) 3(cid:13) interlocutory orders are listed in section 1292 but are not(cid:13) of concern here.(cid:13) If a case involves a number of separate claims or parties,(cid:13) the district court may designate certain partial(cid:13) determinations as final for purposes of appeal under(cid:13) Federal Rule of Civil Procedure 54(b). Here, however, there(cid:13) is only one claim -- that of the plaintiff -- and at the time(cid:13) the appeal was taken only one defendant remained in the(cid:13) case. Accordingly, Rule 54(b) is not helpful.(cid:13) Nor does the exception for certifications of controlling(cid:13) questions of law, provided by 28 U.S.C. S 1292(b), apply in(cid:13) this case. None of the prerequisites required by that(cid:13) provision, such as certification by the district court and(cid:13) acceptance by this Court, have been met. Indeed, it appears(cid:13) that the parties have attempted to bypass those(cid:13) requirements through the stipulation and consent(cid:13) judgment.(cid:13) We are aware that in the criminal procedural field, a(cid:13) defendant may enter a guilty plea, reserving the right to(cid:13) appeal a disputed ruling. See Fed. R. Crim. P. 11(a)(2). No(cid:13) such provision, however, exists in the civil rules.(cid:13) The issue before us is whether the consent judgment can(cid:13) be considered final for purposes of section 1291. Generally,(cid:13) pretrial conference orders are inherently interlocutory and(cid:13) not appealable. Charles Alan Wright, Arthur R. Miller, &(cid:13) Edward H. Cooper, Federal Practice & Procedure:(cid:13) Jurisdiction 2d S 3914.27.(cid:13) Preliminarily, we must consider whether a consent(cid:13) judgment per se is appealable. The Courts of Appeals have(cid:13) "jurisdiction of appeals from all final decisions of the(cid:13) district courts . . . ." 28 U.S.C. S 1291. In an early case, the(cid:13) Supreme Court held that a consent decree could be(cid:13) appealed as of right. Pacific R.R. v. Ketchum , 101 U.S. 280,(cid:13) 296 (1879). The statutory language in effect at that time is(cid:13) still extant in relevant portions of 28 U.S.C. S 1291. As the(cid:13) Court remarked in Downey v. State Farm Fire & Cas. Co.,(cid:13) 266 F.3d 675, 682 (7th Cir. 2001), "for jurisdictional(cid:13) purposes, there is no distinction between ‘consent’ and(cid:13) ‘adversial’ judgments" within the ambit of section 1291.(cid:13) 4(cid:13) The fact that the parties to an appeal have agreed upon(cid:13) a judgment, however, raises another question. Those who(cid:13) have consented to entry of a judgment are sometimes said(cid:13) to lack standing to appeal. The reasoning underlying this(cid:13) approach is that a party who has agreed to the terms of a(cid:13) judgment has waived the right to attack it on appeal. That(cid:13) theory, however, has its limits. If a party expressly reserves(cid:13) the right to appeal, the appellate court may review the(cid:13) contested issue. See Charles Alan Wright, Arthur R. Miller,(cid:13) & Edward H. Cooper, Federal Practice & Procedure:(cid:13) Jurisdiction S 3902.(cid:13) There is some disagreement among the Courts of Appeals(cid:13) on the so called "standing" issue. See, e.g., Clark v. Housing(cid:13) Auth. of City of Alma, 971 F.2d 723 (11th Cir. 1992)(cid:13) (consent decree is appealable in some circumstances);(cid:13) Hudson v. Chicago Teachers Union, Local No. 1., 922 F.2d(cid:13) 1306 (7th Cir. 1991) (appeal allowed because "stipulation(cid:13) memorialized their continued disagreement" with issues(cid:13) previously decided by the district court); Dorse v. Armstrong(cid:13) World Indus., Inc., 798 F.2d 1372 (11th Cir. 1986) (appeal(cid:13) allowed when parties expressly stated an intent to appeal);(cid:13) Greenhouse v. Greco, 544 F.2d 1302, 1305 (5th Cir. 1977)(cid:13) (party who consented to dismissing case as moot so as to(cid:13) appeal district court’s order was not barred from appealing(cid:13) the case because the party did not consent to a judgment(cid:13) that would preclude appellate review). But see Amstar Corp.(cid:13) v. Southern Pac. Transp. Co. of Texas & Louisiana , 607 F.2d(cid:13) 1100 (5th Cir. 1979) (appeal precluded even when parties(cid:13) expressly stipulated intent to appeal).(cid:13) We have recognized that, as a general rule, a party(cid:13) cannot appeal a consent judgment. There are two limited(cid:13) exceptions: failure to assent and lack of subject matter(cid:13) jurisdiction. In re Sharon Steel Corp., 918 F.2d 434, 437 n.3(cid:13) (3d Cir. 1990). But we have also held that a party to a(cid:13) consent judgment may obtain appellate review if there is an(cid:13) explicit reservation of the right to appeal. Keefe v.(cid:13) Prudential Prop. & Cas. Co., 203 F.3d 218, 223 (3d Cir.(cid:13) 2000). The stipulation in this case does preserve appellate(cid:13) rights and thus eliminates the defense of waiver. That said,(cid:13) however, finality remains an issue.(cid:13) 5(cid:13) The purpose of section 1291 is to prohibit piecemeal(cid:13) review and dispose of what is, for all practical purposes, a(cid:13) single controversy in one appeal. See Cobbledick v. United(cid:13) States, 309 U.S. 323, 325 (1940) (discussing rationale for(cid:13) finality as condition of review). But like many other terms(cid:13) in the law, "final" depends on the context in which it is(cid:13) used. Perhaps no one has better expressed frustration with(cid:13) defining the word than Judge Jerome Frank. " ‘Final’ is not(cid:13) a clear one-purpose word; it is slithery, tricky. It does not(cid:13) have a meaning constant in all contexts. . . . [t]here is, still,(cid:13) too little finality about ‘finality.’ " United States v. 243.22(cid:13) Acres of Land in Town of Babylon Suffolk County, N.Y., 129(cid:13) F.2d 678, 680 (2d Cir. 1942).(cid:13) One of the better descriptions of "final" may be found in(cid:13) Coopers & Lybrand v. Livsey, 437 U.S. 463 (1978). There,(cid:13) the Court said that a final judgment under section 1291 is(cid:13) a decision by the district court that " ‘ends the litigation on(cid:13) the merits and leaves nothing for the court to do but(cid:13) execute the judgment.’ " Coopers & Lybrand , 437 U.S. at(cid:13) 467 (quoting Catlin v. United States, 324 U.S. 229, 233(cid:13) (1945)). See Quackenbush v. Allstate Ins. Co. , 517 U.S. 706,(cid:13) 712 (1996); Cunningham v. Hamilton County, Ohio , 527 U.S.(cid:13) 198, 204 (1999). See also Digital Equip. Corp. v. Desktop(cid:13) Direct, Inc., 511 U.S. 863 (1994) (refusal to enforce(cid:13) settlement agreement alleged to shelter a party from suit is(cid:13) not immediately appealable); Bethel v. McAllister Bros., Inc.,(cid:13) 81 F.3d 376, 381-82 (3d Cir. 1996) (because the litigation(cid:13) would be terminated whatever the disposition of non-(cid:13) appealable orders, a final judgment existed for(cid:13) jurisdictional purposes).2(cid:13) _________________________________________________________________(cid:13) 2. Bethel illustrates another tactic to accelerate appeal of interlocutory(cid:13) pretrial rulings through refusal to proceed to trial and accepting a(cid:13) dismissal for failure to prosecute. In Spain v. Gallegos, 26 F.3d 439 (3d(cid:13) Cir. 1994), we held that a party disappointed with a court’s ruling may(cid:13) not decline to proceed and then expect to obtain relief on appeal from a(cid:13) dismissal. Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974), pointed(cid:13) out that to condone such a procedural technique"would in effect provide(cid:13) a means to avoid the finality rule embodied in 28 U.S.C.A. S 1291."(cid:13) Because of its unique factual circumstances, the district court ruling in(cid:13) Bethel was final because no further procedures were available whatever(cid:13) the outcome of the appeal.(cid:13) 6(cid:13) In some circumstances, the path to finality may be(cid:13) shortened through agreement of the parties. Stipulations(cid:13) dependent on the outcome of an appeal can, in appropriate(cid:13) settings, be enforced so as to create finality. In Nixon v.(cid:13) Fitzgerald, 457 U.S. 731 (1982), the parties agreed upon a(cid:13) liquidation of damages after filing a petition for certiorari.(cid:13) The petitioner paid respondent $142,000, and respondent(cid:13) agreed to accept an additional $28,000 if the Court ruled(cid:13) against petitioner. If the Court decided in favor of(cid:13) petitioner, no further sums would be due. Id. at 743-44.(cid:13) The Supreme Court concluded that because the parties(cid:13) retained a sufficient financial stake in the outcome of the(cid:13) appeal, an actual controversy existed and was justiciable.(cid:13) Id.(cid:13) Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982),(cid:13) presented somewhat similar conditions. There, the parties(cid:13) stipulated in advance on the amount of the damages due(cid:13) respondents contingent upon a favorable ruling. If the(cid:13) decision was unfavorable, respondents would not be(cid:13) entitled to any relief. The Supreme Court concluded that(cid:13) the agreements did not deprive it of jurisdiction. Havens(cid:13) Realty Corp, 455 U.S. at 370-71.(cid:13) In Keefe, 203 F.3d at 222, the parties stipulated that if(cid:13) it prevailed on appeal, defendant would pay plaintiff a(cid:13) certain sum. If the Court did not decide the controverted(cid:13) issue, then defendant would pay a greater sum. If plaintiff(cid:13) were successful on appeal, then defendant would pay yet a(cid:13) higher amount. The damage issue, therefore, was settled(cid:13) and the stipulation eliminated the need for any further(cid:13) litigation in the district court. Only the ministerial act of(cid:13) entering judgment remained. That being so, we concluded(cid:13) _________________________________________________________________(cid:13) A conflict among the courts of appeals exists on the question of(cid:13) whether a district court’s dismissal of some claims without prejudice(cid:13) allows other claims to be appealed without orders under Federal Rule of(cid:13) Civil Procedure 54(b). Compare State Treasurer of the State of Michigan(cid:13) v. Barry, 168 F.3d 8 (11th Cir. 1999), with James v. Price Stern Sloan,(cid:13) Inc., 283 F.3d 1064 (9th Cir. 2002); See Fassett v. Delta Kappa Epsilon(cid:13) (New York), 807 F.2d 1150 (3d Cir. 1986) (voluntary dismissal final(cid:13) because statute of limitations had run).(cid:13) 7(cid:13) that the consent judgment was final. Keefe, 203 F.3d at(cid:13) 224.(cid:13) In contrast, the parties’ stipulation in the case before us(cid:13) covers only one possible outcome of the appeal -- an(cid:13) affirmance by this Court. According to the stipulation, if(cid:13) this Court should decide to reverse, then the matter would(cid:13) return to the District Court for a full trial. Similarly, if this(cid:13) Court declined to decide the propriety of the pretrial ruling,(cid:13) the case would be remanded to the District Court.(cid:13) Therefore, unlike Keefe or Bethel, only one possible ruling(cid:13) by this Court would effectively end the District Court’s(cid:13) work. Left open is the possibility of two other dispositions,(cid:13) either a reversal or a dismissal for lack of appellate(cid:13) jurisdiction, that would require further adjudication by the(cid:13) District Court, namely, a full trial. Thus, the stipulation(cid:13) does not create finality in the consent judgment and, in the(cid:13) absence of that element, this Court lacks jurisdiction.(cid:13) Accordingly, the appeal will be dismissed for lack of(cid:13) jurisdiction.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 8(cid:13)
