Opinion
No. 95-1970.
January 12, 1996.
Before Selya, Cyr and Lynch, Circuit Judges.
ADDENDUM ORDER OF COURT
[2] Defendant-appellee A V Fishing, Inc. has filed a motion to dismiss the instant appeal on the ground that the notice of appeal was filed late. For the following reasons, we think the appeal was premature.Plaintiff-appellant James Ferrara was injured on February 2, 1992 when the fishing vessel he captained struck an unknown submerged object, began to take on water, and eventually sank. On March 16, 1993, Ferrara filed a complaint against A V Fishing, the owner of the vessel, asserting claims for negligence (Count I), unseaworthiness (Count II), and maintenance and cure (Count III). After completing discovery, the parties filed cross-motions for summary judgment on the issue of unseaworthiness. On May 11, 1995, the district court issued a memorandum and order denying Ferrara's motion for summary judgment and allowing A V Fishing's motion for summary judgment. A docket entry reading "case closed" was entered the next day.
On June 12, 1995, Ferrara filed a motion for reconsideration of the grant of summary judgment in favor of A V Fishing on the unseaworthiness claim. On June 29, 1996, the district court issued an order denying the motion for reconsideration. The order further stated that "[s]ummary judgment having been entered with respect to Counts I and II of the plaintiff's complaint, the above captioned case is hereby closed." Ferrara's motion to amend the June 29, 1995 order was denied by order dated August 19, 1995. A notice of appeal was filed on August 29, 1995.
A V Fishing takes the position that the district court's May 11, 1995 summary judgment order was a final judgment, and that its entry began the running of the time period for filing a notice of appeal. We disagree. Summary judgment was sought with respect to one claim, namely, the unseaworthiness claim (Count II). The district court's summary judgment memorandum and order does not address the claim for negligence (Count I) or the claim for maintenance and cure (Count III). Under the circumstances, the summary judgment order was not a final, appealable order. See Fed.R.Civ.P. 54(b) ("In the absence of [certification], any order . . . which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties. . ."); Willhauck v. Halpin, 953 F.2d 689, 701 (1st Cir. 1991) (explaining that whether a district court's entry of judgment as to a claim is "final" for purposes of appeal in a multi-claim case is governed by Rule 54(b)).
We are also persuaded that neither the court's June 29, 1995 order nor its August 19, 1995 order constitutes final judgment. Arguably, the June 29, 1995 order disposes of Ferrara's claim for negligence (Count I). However, Ferrara's claim for maintenance and cure (Count III) has not yet been addressed. Although both parties assume that this claim was, at some juncture, dismissed, there is no court order to this effect. Under the circumstances, it appears that the district court ordered the case to be closed prematurely. In the absence of final judgment, the appeal must be dismissed without prejudice and the case remanded to the district court. See 28 U.S.C. § 1291. If it is the district court's intention to dismiss all three counts and enter a final judgment, it should enter a judgment so providing, from which an appeal may be taken.
So ordered.