Advey v. Celotex Corp.

SUHRHEINRICH, Circuit Judge.

Plaintiffs in Case No. 90-6233 appeal summary judgment dismissing defendants from this consolidated action involving claims for injuries allegedly caused by exposure to asbestos. Defendants rely on Fed.R.App.P. 4(a)(4) to challenge this court’s jurisdiction. Plaintiff Ann Hall Sparks brings a separate appeal from the district court’s ruling that Sparks’s claim is barred by the statute of limitations.

We read Rule 4(a)(4) to prohibit jurisdiction in Case No. 90-6233. For the reasons indicated below, we affirm the summary judgment ruling and reverse the district court’s holding on Sparks’s statute of limitations claim.

I

This litigation began on July 29, 1987 when twenty plaintiffs, not including Sparks, filed a products liability suit against sixteen defendants {“Advey I”). The plaintiffs worked at the Firestone Tire Manufacturing plant in LaVergne, Tennessee from 1972 until at least the mid-1980’s. Some of the plaintiffs still work at the plant, which was purchased in 1983 by Bridgestone Tire Manufacturing USA, Inc., a non-party to this litigation.

A blizzard of motions, responses, and judicial orders followed the original complaint. On September 15, 1987 plaintiffs filed a motion to amend the complaint by adding Sparks as a plaintiff. Eight days later the district court denied the motion and dismissed Advey I for lack of subject matter jurisdiction.

Another lawsuit was filed on September 21, 1988 (Dist.Ct. Case No. 3-88-0799 or “Advey II”). Advey II identified twenty plaintiffs, including Sparks, and named seventeen defendants, fourteen of whom were named in Advey I. R.T. Vanderbilt Co., one of the defendants named in Advey I, was inexplicably omitted from the complaint in Advey II. This omission was corrected on January 26, 1989 when the Advey II plaintiffs filed a separate suit against Vanderbilt (Dist.Ct. Case No. 3-89-0075). In February 1989 the district court consolidated the two cases and issued a scheduling order.

Following the district court’s ruling that the plaintiffs were not diligent during discovery, the defendants’ motions for summary judgment were granted. The court found that the plaintiffs had failed to establish a genuine issue of material fact supporting the claim that asbestos products proximately caused their injuries.

The court also dismissed the claim by plaintiff Sparks against defendants Crane, Vanderbilt, Owens-Corning, Anchor Packing, and Sepco. The court observed that Sparks’s claim was not brought within the period provided by the statute of limitations. This appeal followed,

ÍI

A

We first address the threshold issue of appellate jurisdiction. In February 1989 the suit against defendant Vanderbilt was consolidated with the original case filed by the same group of plaintiffs. On August 23, 1990 the district court entered an order containing both case numbers. The order 1) dismissed without prejudice Sparks’s claim against defendants Crane, Vanderbilt, Owens-Corning, Anchor Packing, and Sepco; 2) dismissed without prejudice all plaintiffs’ claims against Vanderbilt as barred by the statute of limitations, and 3) dismissed with prejudice the claims against defendants Crane, Sepco, Garlock, Anchor Packing, Porter, Empire Ace, Celotex, National Friction, Rock Wool, and Owens-Corning.

Vanderbilt responded on September 4, 1990 by filing a Rule 59(e) motion to alter the judgment to a dismissal with prejudice in the suit involving Sparks. Fed.R.Civ.P. 59(e). On September 21, 1990 fourteen plaintiffs filed a notice of appeal from the August 23 order. The case docketed from this appeal is Case No. 90-6233.

On September 28, 1990 the district court granted Vanderbilt’s Rule 59(e) motion to dismiss with prejudice Sparks’s claim against Vanderbilt, Crane, Owens-Corning, Anchor Packing, and Sepco. The court also dismissed with prejudice the claims of all plaintiffs against Vanderbilt as barred by the statute of limitations. Sparks’s appeal was timely filed on October 12, 1990 and docketed as Case No. 90-6319.

Resolution of the jurisdictional issue in Case No. 90-6233 is governed by Fed. R.App.P. 4(a)(4), which provides:

If a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party ... under Rule 59 to alter or amend the judgment ... the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

The notice of appeal in Case No. 90-6233 was filed on September 21, 1990, during the pendency of the Rule 59(e) motion. Under Rule 4(a)(4), “[a] notice of appeal filed before the disposition of [a Rule 59 motion] shall have no effect.”

The Supreme Court has strictly construed Rule 4(a)(4). See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). In Griggs the Court held that a premature notice of appeal was “as if no notice of appeal were filed at all. And if no notice of appeal is filed at all, the Court of Appeals lacks jurisdiction to act.” Id. at 61, 103 S.Ct. at 403.

Application of the unambiguous language of Rule 4(a)(4) and of Supreme Court precedent to the facts before us can lead to only one result. The notice of appeal filed by plaintiffs on September 21, 1990 was premature and renders Case No. 90-6233 a nullity. This court lacks jurisdiction to act in that case.

The plaintiffs rely on Stacey v. Charles J. Rogers, Inc., 756 F.2d 440 (6th Cir.1985), to argue that Vanderbilt’s Rule 59(e) motion only tolled the time of plaintiffs’ appeal of the judgment in favor of Vanderbilt, not the appeal from the judgment for the other defendants. On this view, only Vanderbilt is immunized by the pending Rule 59 motion from the untimely September 21 notice of appeal.

Stacey involved the consolidated action of three groups of plaintiffs. Following the judgment, one group filed a timely Rule 59 motion and the other two groups filed untimely Rule 59 motions. This court said that it lacked jurisdiction to hear the appeals of the latter two plaintiffs. The court reasoned that “it is perfectly reasonable to require each plaintiff in a consolidated proceeding to follow procedural rules as they apply to each plaintiff.” Id. at 442-443.

Stacey does not support jurisdiction here. First, jurisdiction was absent in Stacey because of a failure to comply with the 30-day filing requirement, not due to a notice of appeal filed during the pendency of a Rule 59 motion.

Second, plaintiffs in this case filed a notice of appeal during the pendency of a motion involving their own claims. The plaintiffs attempt to divorce Vanderbilt from other defendants and to suggest that appeals against the other defendants are justiciable on the basis of the September 21 notice.

But practically speaking, Vanderbilt’s Rule 59 motion meant that all plaintiffs had pending action in the district court on September 21. The pending motion involved not only all plaintiffs, but also defendants Owens-Corning and Anchor Packing, both of whom were named in the September 21 notice of appeal. Accepting jurisdiction under these circumstances would run afoul of the principle that two courts ought not have simultaneous jurisdiction over a case. Griggs, 459 U.S. at 58, 103 S.Ct. at 401-02.

Admittedly, the fact that these two suits were consolidated introduces potential confusion regarding the independence of each case on appeal. Fed.R.Civ.P. 42(a) affords the district court discretion concerning the purposes and scope of consolidation. The underlying objective is to administer the court’s business “with expedition and economy while providing justice to the parties.” 9 Wright & Miller, Federal Practice and Procedure, § 2381 (1971). We are mindful of the principle that consolidation of separate actions does not merge the independent actions into one suit.¹ Stacey, 756 F.2d at 442.

The two suits consolidated here, however, involve substantially similar claims and identical plaintiffs. The primary difference arises from the fact that Vanderbilt was inadvertently omitted from the complaint in Advey II, and a separate suit was required to ascertain Vanderbilt’s liability. When the scope of consolidation is broad, the issues and parties virtually identical, and one suit is the result of an inadvertent omission of the defendant’s name from the complaint, we do not believe that the parties suffer an injustice by treating the consolidated cases as one for the purpose of considering the timeliness of the notice of appeal.² In substance, the two consolidated cases are functionally equivalent. We decline the plaintiffs’ invitation to hold otherwise by substituting form for substance.

B

Next we consider Sparks’s submission that her claim is not barred by the statute of limitations. Grants of summary judgment are reviewed de novo. EEOC v. University of Detroit, 904 F.2d 331 (6th Cir.1990). Under the Erie doctrine, federal courts are to apply state substantive law in diversity cases. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The law of Tennessee controls.

Tenn.Code Ann. § 28-3-104 is the governing statute of limitations for products liability cases and provides that injured persons have one year from the date of an injury in which to file an action. Sparks first learned of his injury on February 19, 1987. Advey II was filed over nineteen months later, on September 21, 1988. If Advey II represents Sparks’s first legal action, his claim is time barred.

To avoid this result Sparks refers us to Tennessee’s “saving statute,” which affords a second chance to those whose “actions” were commenced within the period provided by the statute of limitations. Tenn.Code Ann. § 28-1-105 (1980). Section 28-1-105 provides:

(a) If the action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree, is rendered against the plaintiff upon any ground not concluding his right of action, or where the judgment or decree is rendered in favor of the plaintiff, and is arrested, or reversed on appeal, the plaintiff, or his representatives and privies, as the case may be, may, from time to time, commence a new action within one (1) year after the reversal or arrest.

We must determine whether Sparks commenced any action between February 19, 1987 and February 18, 1988. The filing of Advey II falls outside this statutory window of opportunity.

Sparks submits that the September 15, 1987 motion to amend the complaint is an action within the meaning of the saving statute. Tenn.Code Ann. § 28-1-101 defines actions as including “motions, garnishments, petitions, and other legal proceedings in judicial tribunals for the redress of civil rights.” Sparks argues that her claim is “saved” by section 28-1-105 because the motion to amend is an action commenced within the one-year limitation period.

The district court disagreed and relied on Tenn.R.Civ.P. 3, which provides that “[a]ll civil actions are commenced by filing a complaint with the court.” The court reasoned that because Sparks’s motion was not a complaint, Sparks was barred by the statute of limitations.

The relationship between Tenn.R.Civ.P. 3 and Tennessee’s saving statute is no stranger to this court. See Lee v. Crenshaw, 562 F.2d 380, 382 (6th Cir.1977); FDIC v. Cureton, 842 F.2d 887 (6th Cir.1988). In Crenshaw we relied on Tennessee cases to find that the availability of the saving statute is a function of notice to the defendant and diligence by the plaintiff. Crenshaw, 562 F.2d at 382.

There is no evidence that Sparks acted in bad faith or was less than diligent. The plaintiffs’ filing of a motion to amend the complaint to add Sparks served to put the defendants on notice regarding Sparks’s claim. Federal Rule 15(a) permits parties to amend once “as a matter of course,” and adds that leave to amend a pleading “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Indeed, modern-day pleading is not “a game of skill in which one misstep by counsel may be decisive to the outcome.” Foman v. Davis, 371 U.S. 178, 181-182, 83 S.Ct. 227, 229-230, 9 L.Ed.2d 222 (1962) (quoting Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)).

In light of the plain terms of Tenn.Code Ann. § 28-1-101 and our duty to liberally construe pleading rules, we find that Sparks’s motion to amend was an action for the resuscitative purpose of the saving statute. Sparks’s claim is therefore not barred by the statute of limitations.

Ill

To sum up, plaintiffs in Case No. 90-6233 failed to file a timely notice of appeal under Fed.R.App.P. 4(a)(4), depriving this court of jurisdiction over their claims. In Case No. 90-6319, we reverse the district court’s judgment that Sparks was barred by the statute of limitations from participating in this litigation.

1 . The dissent relies on dicta from Stacey to suggest that we are not sufficiently mindful of this principle. We underscore that Stacey’s analysis of appellate jurisdiction in a consolidated case did not consider the effect of the pend-ency of a Rule 59 motion on the timeliness of a filing by other parties. The plaintiffs in Stacey were denied an appellate hearing because they failed to file a notice of appeal within 30-days. Precedential reasoning must begin in the proper identification of a case's ratio decidendi. Where the ratio of an earlier case is distinct from that of the case before us, we must resist the temptation to apply dicta from the earlier case.

2 . The dissent submits that we place an undue fact-finding burden on the district judge and provide opportunity for wily litigants to undermine the goals of consolidation. These conjectures are especially misplaced where, as here, a district judge need only be more precise when identifying the case(s) to which the parts of a consolidated order apply. Had the district court provided such additional detail in its August 23rd order, no subsequent confusion need have arisen. This strikes us as the most workable approach of all.