J. Herschel HARDY, Plaintiff-Appellant, v. BANKERS LIFE & CASUALTY CO., a corporation, et al., Defendants-Appellees

United States Court of Appeals for the Seventh Circuit1955-05-26No. No. 11446

222 F.2d 827

Summary · law.co

Holding. The order granting summary judgment to some defendants while leaving the action pending against other defendants is not a final decision appealable to this court. The motion to dismiss the appeal is granted.

A plaintiff sued multiple defendants, including three Illinois corporations and seven Illinois individuals, as well as four defendants (two Texas corporations and two nonresident individuals) who were never served with process. The district court granted summary judgment in favor of the served defendants, and the plaintiff appealed. The served defendants moved to dismiss the appeal, arguing that the summary judgment order was not final because claims remained pending against the unserved defendants.

The court addressed whether an order granting summary judgment to some but not all defendants constitutes a final, appealable decision. Under established precedent, when a complaint is dismissed as to certain defendants while claims continue against others, the order is generally not appealable. The plaintiff argued that Federal Rule of Civil Procedure 54(b) allowed entry of a final judgment, but the court rejected this argument because Rule 54(b) applies only when multiple claims exist, and here the complaint alleged only a single claim of conspiracy involving multiple parties.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether summary judgment for some but not all defendants creates a final, appealable decision
Whether Rule 54(b) applies when multiple parties assert a single claim
Whether the status of unserved defendants affects appealability of orders benefiting served defendants

Procedural posture

The plaintiff appealed from a district court order granting summary judgment in favor of served defendants, and the served defendants moved to dismiss the appeal for lack of jurisdiction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

DUFFY, Chief Judge.

This is a motion to dismiss the appeal. Plaintiff filed a complaint in the District Court charging conspiracy and demanding compensatory damages of $15,000,-000, and exemplary damages of $10,000,-000. Three Illinois corporations and seven individuals, citizens of Illinois, were named as defendants and were served with process. These defendants will hereinafter be called “Appellees”. Two Texas corporations and two nonresident individuals were also named as defendants but were not served.

Appellees filed a motion for summary judgment which was granted as to them on March 8,1955. Plaintiff appeals from this order. The basis for the pending motion to dismiss the appeal is that the order appealed from is not a final decision.

Section 1291, Title 28 U.S.Code, grants jurisdiction to this Court to review “all final decisions of the district courts.” Section 1292 permits a review of a limited category of interlocutory orders none of which are applicable here. The question before us is whether the order for summary judgment in favor of some but not all of the named defendants is a final decision.

Appellant moves in this Court that defendants, Fiscal Agents, Inc., a Texas corporation, Leland Fikes, Harold J. Knop and Southwest Mortgage and Loan Corporation, a Texas corporation (none of whom were served) be dismissed without prejudice or, in the alternative, that the plaintiff be given ten days from the date of the entry of an order on this motion within which to make a motion in the United States District Court, Northern District of Illinois, Eastern Division, to dismiss said named defendants without prejudice, and to file an augmentation of the record in this Court showing such defendants to have been dismissed without prejudice.

In the ordinary case where complaint is dismissed as to some defendants, leaving the cause pending as to other defendants, it is well established that the order of dismissal is not appealable. Kuhn v. Canteen Food Service, Inc., 7 Cir., 150 F.2d 55, 56; Tauzin v. Saint Paul Mercury Indemnity Co., 5 Cir., 195 F.2d 223, 225; Boston Medical Supply Co. v. Lea & Febiger, 1 Cir., 195 F.2d 853, 855.

Rule 54(b), Federal Rules of Civil Procedure, as amended in 1948, 28 U.S.C., does not help the plaintiff. In the first place, the District Court did not make, as the Rule requires, a determination that there was no just reason for delay and that a final judgment be entered. Furthermore, that Rule applies only to a case in which multiple claims are asserted by or against one or more of the parties. In the absence of multiple claims, no final judgment can be entered under the Rule. Steiner v. 20th Century-Fox Film Corporation, 9 Cir., 220 F.2d 105. The case at bar involves only multiple parties — not multiple claims. The complaint charges a conspiracy. Such an allegation states but a single claim. Steiner v. 20th Century-Fox Film Corporation, supra; F. L. Mendez & Co. v. General Motors Corporation, 7 Cir., 161 F.2d 695.

We think the fact that the remaining four defendants are residents and citizens of Texas, and have not been served in the action, does not make inapplicable the rule of law hereinbefore quoted. The defendants, other than appellees, are still parties to this lawsuit. Service may still be had on some or all of them. This Court is without jurisdiction to entertain plaintiff’s motion to dismiss as to them. In fact, we can take no action whatever except to grant the motion to dismiss the appeal. It is so ordered.