THOMAS v. BASHAM

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Docket Number

No. 90-2450WM.

Attorney(S)

Daniel Dodson, Jefferson City, Mo., for appellant. Bruce Farmer, Jefferson City, Mo., for appellee.

Judges

Theodore McMillian

Acts

Judiciary And Judicial Procedure — Courts Of Appeals — Jurisdiction And Venue — Final Decisions Of District Courts

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Smart Summary

Factual and Procedural Background

Emerson Thomas, an inmate at the Missouri State Penitentiary, and Marian Basham, the prison mailroom supervisor, became involved in a dispute over prison mailroom regulations. On July 30, 1986, Thomas sent Basham a letter containing insulting and abusive language, which led Basham to issue a conduct violation against Thomas on September 11, 1986. Following a hearing, Thomas was disciplined for the use of abusive language.

On December 28, 1988, Thomas filed a civil rights action in federal district court seeking declaratory and injunctive relief and damages related to the disciplinary violation. Basham responded with two state law counterclaims alleging abuse of process and defamation. Both parties moved for summary judgment on July 2, 1990. On July 26, 1990, the district court granted summary judgment in favor of Basham and denied Thomas's motion. Thomas filed a notice of appeal on August 28, 1990. Subsequently, on October 10 and October 24, 1990, the district court dismissed Basham's counterclaims without prejudice. Thomas did not file a new notice of appeal after these dismissals.

Legal Issues Presented

Whether the court of appeals has jurisdiction to hear Thomas's appeal given that the notice of appeal was filed before the district court dismissed all pending counterclaims, and thus before a final, appealable order was entered.
Whether the district court's July 26, 1990, order granting summary judgment was a final judgment under 28 U.S.C. § 1291, or whether Rule 54(b) certification was required to render the order appealable.

Arguments of the Parties

Appellee's Arguments

Basham argued that the court of appeals lacked jurisdiction because Thomas filed a premature notice of appeal while two counterclaims were still pending in the district court.
She contended that the July 26, 1990, summary judgment order was not final and appealable because it did not dispose of all claims, and no Rule 54(b) certification was obtained to allow an immediate appeal.

The opinion does not contain a detailed account of the appellant's arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bender v. Williamsport Area School District, 475 U.S. 534 (1986)	Federal courts are courts of limited jurisdiction; appellate courts must sua sponte consider jurisdiction.	Supported the court's obligation to assess appellate jurisdiction even if parties concede it.
Alumax Mill Products, Inc. v. Congress Financial Corp., 912 F.2d 996 (8th Cir. 1990)	Reinforced the obligation of appellate courts to consider jurisdiction.	Confirmed the court's duty to address jurisdiction sua sponte.
Hughes v. Patrolmen's Benevolent Ass'n, 850 F.2d 876 (2d Cir. 1988)	Appellate courts raise jurisdictional issues sua sponte when indicated.	Supported the court's consideration of jurisdiction despite party concession.
28 U.S.C. § 1291	Defines appellate jurisdiction over final decisions of district courts.	Used to determine that the July 26, 1990 order was not final and thus not appealable.
Towers Hotel Corp. v. Rimmel, 871 F.2d 766 (8th Cir. 1989)	Defines final judgment as one that ends litigation on the merits, leaving nothing for the court to do but execute judgment.	Applied to conclude the summary judgment was not final because counterclaims remained.
Catlin v. United States, 324 U.S. 229 (1945)	Clarifies the final judgment rule.	Supported the standard for finality applied by the court.
Fed.R.Civ.P. 54(b)	Allows certification of final judgment on some claims when multiple claims or parties are involved.	Not applied here as no certification was obtained, affecting appellate jurisdiction.
Martinez v. Arrow Truck Sales, Inc., 865 F.2d 160 (8th Cir. 1988)	Rule 54(b) certification can validate a premature notice of appeal.	Distinguished because no Rule 54(b) certification was obtained in this case.
Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th Cir. 1988)	Similar to Martinez; Rule 54(b) certification can validate premature appeals.	Referenced to show no such certification existed here.
Hayden v. McDonald, 719 F.2d 266 (8th Cir. 1983)	Appellate court may remand for Rule 54(b) certification nunc pro tunc.	Not applicable here as no such remand or certification occurred.
Merchants Planters Bank v. Smith, 516 F.2d 355 (8th Cir. 1975)	De facto Rule 54(b) certification by administrative separation of claims can create appellate jurisdiction.	Distinguished because no administrative separation or de facto certification occurred here.
Ethridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988)	Premature notice of appeal validated if remaining claims are subsequently disposed of.	Not followed here; cited as a contrasting approach.
Sacks v. Rothberg, 845 F.2d 1098 (D.C. Cir. 1988)	Premature appeal ripens when district court judgment becomes final.	Cited as authority but the court did not find appellate jurisdiction due to lack of notice of appeal.

Court's Reasoning and Analysis

The court began by emphasizing the limited jurisdiction of federal courts and the obligation of appellate courts to consider their own jurisdiction sua sponte. It noted that Thomas filed a notice of appeal on August 28, 1990, after the district court granted summary judgment for Basham on July 26, 1990, but while two counterclaims remained pending. Because the district court had not yet disposed of all claims, the July 26 order was not a final, appealable judgment under 28 U.S.C. § 1291 and related precedent.

The court explained that Rule 54(b) allows a district court to certify a judgment as final on some claims even if others remain, enabling immediate appeal. However, the district court did not certify the summary judgment under Rule 54(b), nor did Thomas obtain such certification. Consequently, the notice of appeal was premature.

The court distinguished Merchants Planters Bank v. Smith, where a de facto Rule 54(b) certification existed due to administrative separation of claims, a circumstance not present here. Although other circuits have recognized that a premature notice of appeal can ripen if remaining claims are later resolved, the court held that jurisdiction was lacking because Thomas failed to file a new notice of appeal after dismissal of the counterclaims.

Holding and Implications

The court's final decision is to DISMISS THE APPEAL FOR LACK OF APPELLATE JURISDICTION.

The direct consequence is that the court will not review the merits of Thomas's appeal because the notice of appeal was premature and no subsequent timely notice was filed after final disposition of all claims. The opinion does not establish new precedent but reaffirms the strict application of the final judgment rule and the necessity of either a final order disposing of all claims or proper Rule 54(b) certification for appellate jurisdiction.

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EMERSON THOMAS, APPELLANT, v. MARIAN BASHAM, APPELLEE.

McMILLIAN, Circuit Judge.

Emerson Thomas appeals from an order entered in the District Court for the Western District of Missouri granting summary judgment in favor of Marian Basham. Thomas v. Basham, No. 88-4600-CV-C-5 (W.D.Mo. July 26, 1990, (order granting summary judgment). For the reasons discussed below, we dismiss the appeal for lack of appellate jurisdiction.

The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.

Thomas is an inmate at the Missouri State Penitentiary; Basham is the prison mailroom supervisor. A dispute arose between Thomas and Basham concerning certain prison mailroom regulations. On July 30, 1986, Thomas sent Basham a letter in which he stated that Basham was "an unstable state employee" and suggested that she should seek professional help because she suffered from "either brain damage or an acute case of lunacy — or a combination of both." On September 11, 1986, Basham issued a conduct violation for Thomas because the letter contained insulting and abusive language. Following a hearing, the prison authorities disciplined Thomas for using abusive language in the letter.

On December 28, 1988, Thomas then filed this civil rights action in federal district court seeking declaratory and injunctive relief and damages for the disciplinary violation. Basham responded by filing a two-count state law counterclaim against Thomas. On July 2, 1990, both parties moved for summary judgment. On July 26, 1990, the district court granted Basham's motion for summary judgment and denied Thomas's motion. On August 28, 1990, Thomas filed a notice of appeal. Subsequently, on October 10, 1990, the district court dismissed one of Basham's counterclaims without prejudice and, on October 24, 1990, dismissed Basham's remaining counterclaim without prejudice. Thomas did not, however, file a new notice of appeal.

Basham asserted abuse of process and defamation claims.

The federal courts are courts of limited, not general, jurisdiction. See, e.g., Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). Thus, every federal appellate court has a special obligation to consider its own jurisdiction. Id.; see also Alumax Mill Products, Inc. v. Congress Financial Corp., 912 F.2d 996, 1002 (8th Cir. 1990). In fact, jurisdiction issues will be raised sua sponte by a federal court when there is an indication that jurisdiction is lacking, even if the parties concede the issue. E.g., Hughes v. Patrolmen's Benevolent Ass'n, 850 F.2d 876, 881 (2d Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988). Basham argues that this court lacks appellate jurisdiction because Thomas filed a premature notice of appeal. She argues that at the time Thomas filed his notice of appeal on August 28, 1990, she still had two counterclaims pending. Thus, Basham argues the district court's July 26, 1990, order granting summary judgment was not a final and appealable order. We agree.

Under the final judgment rule, courts of appeals have jurisdiction of appeals from all final decisions of the district courts "except where a direct review may be had in the Supreme Court." 28 U.S.C. § 1291. Generally, a district court decision is final when "the district court has rendered a decision that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 769 (8th Cir. 1989), citing Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In the present case, the notice of appeal filed on August 28, 1990, was clearly premature. The grant of summary judgment on July 26, 1990, was not a final judgment because Basham's counterclaims were still outstanding. The judgment was not final until October 24, 1990, when the district court dismissed Basham's second counterclaim. Thomas did not file a new notice of appeal within 30 days after the date of entry of the judgment as required by Fed.R.App.P. 4(a)(1).

Nor did the district court certify the grant of summary judgment under Fed.R.Civ.P. 54(b). Under Rule 54(b), the district court can enter final judgment on one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Thus, if a party obtains Rule 54(b) certification, the appeals court has jurisdiction over the appeal even though other claims remain unresolved in the district court. We have held that a subsequent Rule 54(b) certification can validate a premature notice of appeal. See Martinez v. Arrow Truck Sales, Inc., 865 F.2d 160, 161 (8th Cir. 1988) (per curiam); see also Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645-46 (10th Cir. 1988) (banc); cf. Hayden v. McDonald, 719 F.2d 266, 268 (8th Cir. 1983) (per curiam) (appellate court sua sponte remanded case to district court for limited purpose of Rule 54(b) certification on nunc pro tunc basis). In the present case, however, Thomas did not obtain Rule 54(b) certification.

We believe Merchants Planters Bank v. Smith, 516 F.2d 355 (8th Cir. 1975) (per curiam) ( Merchants Planters Bank), is distinguishable from the present case. In Merchants Planters Bank, the bank sought declaratory and injunctive relief in the district court from the decision of the Comptroller to allow a competitor to open a branch office. The competitor intervened as a party defendant and filed an antitrust counterclaim against the bank. Id. at 356 n. 3. The district court granted summary judgment in favor of the Comptroller but deferred any decision on the competitor's counterclaim. Id. We held that there was appellate jurisdiction when, subsequent to oral argument, the competitor voluntarily dismissed its counterclaim, because the district court had made a de facto Rule 54(b) certification by administratively separating the bank's challenge to the Comptroller's decision from the competitor's counterclaim. Id. In the present case, the district court did not administratively separate Thomas's claim from Basham's counterclaims, and thus there was no de facto Rule 54(b) certification which could have validated the premature notice of appeal.

But see Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1402 (9th Cir. 1988) (premature notice of appeal validated if remaining claims subsequently disposed of); Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988) (banc) (there is appellate jurisdiction when district court has adjudicated all remaining outstanding claims before court of appeals acts to dismiss appeal, whether or not a party has obtained Rule 54(b) certification in the meantime); Sacks v. Rothberg, 269 U.S.App.D.C. 353, 845 F.2d 1098, 1099 (1988) (per curiam) (appeal taken prematurely effectively ripens and secures appellate jurisdiction when the district court judgment becomes final prior to disposition).

Accordingly, the appeal is dismissed for lack of appellate jurisdiction.