PRECEDENTIAL
Filed August 21, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4144
IN THE MATTER OF THE COMPLAINT OF PMD
ENTERPRISES, INC., AS OWNER OF THE VESSEL
BETH
DEE BOB, FOR EXONERATION FROM AND LIMITATION
OF LIABILITY
LISA MCLAUGHLIN,
as wife and Personal Representative of the
Estate of Edward J. McLaughlin, Deceased,
Appellant
v.
CAPE MAY FOODS, INC. and PETER A. LAMONICA
On Appeal from the United States District
Court
for the District of New Jersey
(D.C. Civil No. 00-cv-00161)
District Judge: Hon. Garrett E. Brown, Jr.
Argued July 24, 2002
Before: SLOVITER, NYGAARD and BARRY, Circuit
Judges
(Filed: August 21, 2002)
Marvin I. Barish (Argued)
Marvin I. Barish Law Offices
Philadelphia, PA 19106
Attorney for Appellant
David R. Hornig (Argued)
Julia M. Moore
Nicoletti, Hornig, Campise &
Sweeney
New York, NY 10005
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge:
Lisa McLaughlin, widow of Captain Edward McLaughlin
and representative of his estate, appeals
the denial of
summary judgment on a counterclaim asserted
by
defendant PMD Enterprises, her late husband's
employer.
McLaughlin predicates our jurisdiction over
the District
Court's order denying her motion to dismiss
the
counterclaim on 28 U.S.C. S 1292(a)(3) (2002),
which allows
for interlocutory appeals in admiralty. Because
we conclude
that S 1292(a)(3) does not permit an interlocutory
appeal
under the facts of this case, we shall dismiss
this appeal for
lack of jurisdiction.
I.
FACTS AND PROCEDURE
On January 6, 1999, the clamming vessel Beth
Dee Bob
sunk off the coast of New Jersey. All four
crew members
died, including Captain McLaughlin. At the
time, the ship
was returning home fully loaded with seventy
cages of
clams.
The Beth Dee Bob was owned by PMD Enterprises,
the
employer of the crew members. Peter Lamonica
owns fifty
percent of PMD and also owns fifty percent
of Cape May
Foods.
On March 31, 1999, Lisa McLaughlin filed a
wrongful
death suit against PMD under the Jones Act,
46 U.S.C.
S 688 (2002), in the United States District
Court for the
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Eastern District of Pennsylvania. PMD filed
a petition for
limitation of liability in the United States
District Court for
the Eastern District of New York on May 7,
1999, which
was transferred to the Eastern District of
Pennsylvania and
then consolidated with the wrongful death
suit. McLaughlin
then filed essentially the same wrongful
death action
against Cape May Foods in the Eastern District
of
Pennsylvania. The district court in Pennsylvania
dismissed
the complaint against PMD for lack of personal
jurisdiction
and transferred the remaining actions to
the United States
District Court for the District of New Jersey.
On December 1, 1999, McLaughlin filed a separate
wrongful death action against Peter Lamonica
alleging that
his negligence was the cause of Captain McLaughlin's
death. This action was consolidated with
the limitation
action and the wrongful death action against
Cape May
Foods. Thereafter, the case was assigned
to a magistrate
judge.
In October 2000, PMD requested leave to file
a
counterclaim against McLaughlin for property
loss
sustained when the ship sank allegedly due
to Captain
McLaughlin's negligence. McLaughlin objected
to the
request, claiming that shipowners were barred
from suing
employees for negligence under the Jones
Act and the
Federal Employers' Liability Act, 45 U.S.C.
S 55 (2002). The
Magistrate Judge granted PMD leave to file
the
counterclaim. In re Complaint of PMD Enters.,
No. 00-0161
(D.N.J. Dec. 14, 2000) (Magistrate Judge's
decision).
McLaughlin did not attempt to appeal the
decision to the
District Court. PMD filed the counterclaim
asking that
McLaughlin compensate it for the loss of
the ship.
In May 2001, Lamonica and Cape May Foods moved
in
the District Court for summary judgment against
McLaughlin, and McLaughlin in turn moved
to dismiss
PMD's counterclaim. In October 2001, the
District Court
granted summary judgment to Lamonica and
Cape May
Foods and, construing McLaughlin's motion
as one for
summary judgment, denied summary judgment
to
McLaughlin on PMD's counterclaim. In re Complaint
of PMD
Enters., No. 00-0161, slip op. at 1 (D.N.J.
Oct. 22, 2001).
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In denying McLaughlin's motion for summary
judgment,
the District Court found that there were
genuine issues of
fact regarding the cause of the ship's sinking,
in particular,
whether Captain McLaughlin had left the hatches
and
engine room doors open. Id. at 18. This appeal
followed.1
II.
JURISDICTION
McLaughlin frames her appeal as an interlocutory
appeal
in admiralty pursuant to 28 U.S.C. S 1292(a)(3).
Denials of
summary judgment, like most other non-final
orders of
district courts, are generally not appealable
except as
interlocutory appeals under 28 U.S.C. S 1292.
See, e.g.,
Chambers Dev. Co. v. Passaic County Utils.
Auth., 62 F.3d
582, 584 (3d Cir. 1995) ("We will not review
an order
denying a motion for summary judgment.").
See also Thypin
Steel Co. v. Asoma Corp., 215 F.3d 273, 279
(2d Cir. 2000)
("Section 1292(a) is an exception to the
general rule of
finality stated in S 1291 . . . ."). McLaughlin,
however,
contends that because this is an interlocutory
appeal in
admiralty, it can be brought under S 1292(a)(3),
which
reads as follows:
(a) Except as provided in subsections (c)
and (d) of
this section, the courts of appeals shall
have
jurisdiction of appeals from:
_________________________________________________________________
1. Although it is evident that McLaughlin
argues that PMD should not be
able to file a counterclaim against a seaman
(living or deceased), it is
unclear whether McLaughlin is appealing (a)
the Magistrate Judge's
order allowing PMD's counterclaim or (b)
the District Court's denial of
summary judgment. McLaughlin argues that
under this court's decision
in Henderson v. Carlson, 812 F.2d 874, 878
(3d Cir. 1987) (declining to
adopt the rule that a party waives the right
to appeal a magistrate
judge's report by failing to timely file
objections to the report pursuant
to 28 U.S.C. S 636), she cannot be denied
the right to appeal the order
of the Magistrate Judge allowing PMD's counterclaim
notwithstanding
her failure to object to the order. Whether
McLaughlin is appealing the
Magistrate Judge's order to allow the counterclaim
or the District Court's
decision to deny summary judgment, the result
is the same as neither
qualifies as an interlocutory appeal under
S 1292(a)(3).
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. . . .
(3) Interlocutory decrees of such district
courts or
the judges thereof determining the rights
and liabilities
of the parties to admiralty cases in which
appeals from
final decrees are allowed.
28 U.S.C. S 1292(a).
We have interpreted this statute narrowly
to allow"an
appeal in admiralty after a determination
of liability but
before the assessment of damages." Burgbacher
v. Univ. of
Pittsburgh, 860 F.2d 87, 88 (3d Cir. 1988).
See also In re
Complaint of Nautilus Motor Tanker Co., 85
F.3d 105, 110
n.3 (3d Cir. 1996) ("The purpose of [S 1292(a)(3)]
is to allow
a party found liable in an admiralty proceeding
to take an
immediate appeal without submitting to a
protracted trial of
the damage issues.") (citing 2 Thomas J.
Schoenbaum,
Admiralty and Maritime Law S 21-13 (2d ed.
1994)); United
States v. The Lake George, 224 F.2d 117,
119 (3d Cir.
1955) ("[T]he statute [S 1292(3), current
version at
S 1292(a)(3)] permits an appeal in avoidance
of the expense
and delay of finding damages which may not
be recovered
. . . [but i]t is settled . . . that the
statute does not cover all
interlocutory orders . . . . The allowance
of appeals under
the statute appears . . . to attend upon
the final
determination of rights and liabilities,
or at least upon the
determination of substantial rights of the
parties,
particularly where there is an immediacy
of prejudicial
effect.").
Our case law on interlocutory appeals in admiralty
establishes that the language of S 1292(a)(3)
regarding a
final determination of rights and liabilities
applies to
situations such as the dismissal of parties
from the
litigation, grants of summary judgment (even
if not to all
parties), and other cases where a claim has
somehow been
terminated. "[T]he order appealed from must
conclusively
determine the merits of a claim or defense."
Kingstate Oil v.
M/V Green Star, 815 F.2d 918, 921 (3d Cir.
1987). For
example, in Jones & Laughlin Steel, Inc.
v. Mon River
Towing, Inc., 772 F.2d 62, 64 & n.1 (3d
Cir. 1985), we
allowed an interlocutory appeal in admiralty
after one of the
defendants was dismissed from the action
for lack of
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subject matter jurisdiction. In Nautilus Motor
, 85 F.3d at
109-10, we granted an appeal following the
grant of
judgment for the counterclaim, even though
the principal
claim had not been conclusively decided.
As we have
previously stated, interlocutory appeals
in admiralty apply
"to any order which finally determines the
liability of a
party even if the order leaves unresolved
an issue which
may ultimately preclude recovery by a particular
plaintiff."
Bankers Trust Co. v. Bethlehem Steel Corp.,
761 F.2d 943,
945 n.1 (3d Cir. 1985) (emphasis in original).
Applying this narrow interpretation of S 1292(a)(3),
we
have on occasion rejected an interlocutory
appeal in
admiralty. In Lake George, we rejected an
interlocutory
appeal of an order that dismissed one of
four grounds for
liability because the "liability of the vessel
to forfeiture ha[d]
yet to be determined," and thus the order
did not fix
liability or "determine or affect substantial
rights." 224 F.2d
at 119. Similarly, in Burgbacher, we held
an interlocutory
appeal of a decision denying summary judgment
to the
defendants in an admiralty case did not meet
the statutory
standard. 860 F.3d at 88. We explained that
because the
ruling did not make a liability determination,
S 1292(a)(3)
did not apply. Id.
Our interpretation of S 1292(a)(3) comports
with the
interpretations of our sister courts of appeals.
See, e.g., 29
James W. Moore, Moore's Federal PracticeS
710.05, at 710-
16 to 17 (3d ed. 2002) (stating that most
courts of appeal
construe S 1292(a)(3) "narrowly," interpreting
it to "permit[ ]
interlocutory appeal[s] when rights and liabilities
have been
determined between two of a number of parties,
notwithstanding that disputes remain between
one of them
and others"); 2 Thomas J. Schoenbaum, Admiralty
and
Maritime Law S 21-12, at 559 (3d ed. 2001)
("The purpose
of [S 1292(a)(3)] is to allow a party found
liable in an
admiralty proceeding to take an immediate
appeal without
submitting to a protracted trial of the damage
issues, but
the procedure is also fully applicable when
a claim against
one or more parties is dismissed on the merits.")
(citations
omitted).
Here, McLaughlin is attempting to appeal a
denial of
summary judgment that she sought in order
to dismiss
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PMD's counterclaim against her. The question
then is
whether this denial of summary judgment "determin[es]
the
rights and liabilities of the parties." S
1292(a)(3). In
Burgbacher, the parents of a student who
died while
working for the University of Pittsburgh
on a "semester at
sea" program, sued the university, the owner
of the ship on
which he was working, and a physician onboard
the ship.
The parents filed suit based in part on Pennsylvania's
Survival Act and the Death on the High Seas
Act. 860 F.2d
at 88. Some of the defendants moved for summary
judgment on the ground that the parents'
claims were
barred by state workers' compensation laws
and could not
be asserted under the Pennsylvania Survival
Act. The
district court denied the motion. The moving
defendants
appealed, contending this was the type of
interlocutory
appeal in admiralty covered by S 1292(a)(3).
We disagreed
and dismissed the appeal for lack of jurisdiction
based on
the following reasoning:
The case law construing the statute does not
take a
particularly expansive view of the subsection
because
the traditional interpretation of the statute
was that it
permitted an appeal in admiralty after a
determination
of liability but before the assessment of
damages. See
Petition of Bave, 314 F.2d 335 (3d Cir. 1963);
Francis
v. Forest Oil Corp., 798 F.2d 147 (5th Cir.
1986). While
the case law has expanded the construction
of the
statute in some respects, e.g., Kingstate
Oil v. M/V
Ocean Star, 815 F.2d 918 (3d Cir. 1987),
we are
satisfied that the subsection does not apply
here
because a liability determination has not
been made on
either claim.
To treat these rulings, though meaningful,
as coming
within the statute would make every substantial
legal
ruling in admiralty proceedings immediately
appealable
even though liability remained undetermined.
We
believe such a construction would read too
much into
the statute, policy considerations aside.
Id. at 88 (footnote omitted).
In Burgbacher, we cited In re Bave, 314 F.2d
335 (3d Cir.
1963), in which, for similar reasons, we
held there was no
7
appellate jurisdiction over a denial of a
motion to dismiss a
limitation action in an admiralty case. We
concluded that
S 1292(a)(3) did not provide appellate jurisdiction
because
"the rights and liabilities of the parties
ha[d] not been
determined as required by the statute." Id.
at 336.
Here, no right or liability of the parties
has been
"conclusively determine[d]." Kingstate Oil,
815 F.2d at 921.
Rather, the District Court has simply allowed
the case to
proceed. If, at some point in the future,
PMD is successful
at trial with respect to its counterclaim,
McLaughlin could
then, on appeal, press her interesting argument
that there
can be no counterclaim by an employer against
an
employee under the Jones Act.2
Had the District Court denied PMD the right
to file the
counterclaim or had it granted summary judgment
to
McLaughlin on PMD's counterclaim, the rights
and
liabilities of the parties may well have
been conclusively
determined, in which case the District Court's
decision
would have been appealable. See Nautilis
Motor , 85 F.3d at
109-10 & n.3 (finding appellate jurisdiction
pursuant to
S 1292(a)(3) to consider a decision holding
plaintiff liable on
defendant's counterclaim that alleged plaintiff
was solely
responsible for the grounding of its tanker,
but leaving
plaintiff 's limitation of liability claim
pending); Bergeron v.
Elliot, 466 F.2d 514, 516 n.3 (5th Cir. 1972)
(allowing
appeal of grant of summary judgment as to
one of several
defendants). Cf. Jamaica Commodity Trading
Co. v. Barge
Hercules, 992 F.2d 1162 (11th Cir. 1993)
(per curiam)
(finding no jurisdiction to hear interlocutory
appeal of grant
of summary judgment on one defendant's cross-claim
against another for indemnification because
plaintiff 's
claims for liability as to any defendant
had not been
determined). As the District Court did neither
of these and
_________________________________________________________________
2. Alternatively, had McLaughlin convinced
the District Court that the
denial of summary judgment "involve[d] a
controlling question of law as
to which there is substantial ground for
difference of opinion and that an
immediate appeal from the order may materially
advance the ultimate
termination of the litigation," 28 U.S.C.
S 1292(b), then we could have
had jurisdiction over this appeal if we had
accepted the certification. See,
e.g., Yamaha Motor Corp., U.S.A. v. Calhoun
, 516 U.S. 199, 204 (1996)
(finding S 1292(b) applicable to admiralty
cases).
8
did not otherwise determine the rights and
liabilities of the
parties, McLaughlin's appeal is not yet ripe
for review and
cannot be heard by this court. Accord Francis
v. Forest Oil
Corp., 798 F.2d 147, 149-50 (5th Cir. 1986)
(holding that
an order denying summary judgment is not
appealable
under S 1292(a)(3) even though it may have
had"important
procedural consequences"); Upper Miss. Towing
Corp. v.
West, 338 F.2d 823 (8th Cir. 1964) (per curiam)
(holding
that denial of motion for summary judgment
not appealable
because did not determine any rights and
liabilities).3
III.
CONCLUSION
Because the District Court has not made a
decision
establishing the rights and liabilities of
the parties, 28
U.S.C. S 1292(a)(3) does not permit an interlocutory
appeal
in this case. We therefore lack jurisdiction
and will dismiss
this appeal.
_________________________________________________________________
3. McLaughlin also appeals the District Court's
refusal to require PMD to
show that Captain McLaughlin's negligence
was the sole cause of the
accident, as the Magistrate Judge had recommended.
For the same
reasons stated above, this issue is not yet
appealable. The District
Court's decision did not conclusively determine
McLaughlin's liabilities,
if any, when it decided not to require PMD
to show that the accident was
entirely Captain McLaughlin's fault.
Additionally, PMD, in its brief, requests
that McLaughlin be assessed
costs and damages pursuant to Federal Rule
of Appellate Procedure 38.
We will deny this request. First, PMD has
not filed a separate motion for
sanctions. According to the Advisory Committee's
Notes to the 1994
Amendments to Rule 38, "[a] statement inserted
in a party's brief that
the party moves for sanctions is not sufficient
notice." Fed. R. App. P. 38
advisory committee's note. Second, we do
not find that McLaughlin's
appeal is "wholly without merit," the standard
that this court applies for
an award for a frivolous appeal pursuant
to Rule 38. See, e.g., Huck ex
rel. Sea Air Shuttle Corp. v. Dawson, 106
F.3d 45, 52 (3d Cir. 1997);
Nagle v. Alspach, 8 F.3d 141, 145 (3d Cir.
1993). Although we hold that
we lack jurisdiction to hear McLaughlin's
appeal, McLaughlin's reliance
on the language of S 1292(a)(3) to support
her appeal was not "frivolous."
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A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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