Robert Fadem Mary O. Fadem v. United States of America, (Three Cases)

42 F.3d 533

Opinions

ORDER

The Order filed October 20,1994, granting appellants’ petition for rehearing is ordered to be published.

ORDER

Circuit Judge BRIGHT and Circuit Judge T.G. NELSON have voted to grant Appellants’ petition for rehearing.

Fadem I, Fadem III, Fadem TV and Fa-dem V are cases consolidated in the district eourt for all purposes. Appellants appealed the district court’s dismissal of Fadem III, Fadem IV and Fadem V. However, at the time of the appeal, it appeared that the district court had not yet resolved Fadem I. Consequently, the panel dismissed the appeal in a memorandum disposition, relying on Huene v. United States, 743 F.2d 703 (9th Cir.1984). Huene held that an order disposing of less than all of the consolidated cases is not a final order and is not appealable absent certification pursuant to Fed.R.Civ.P. 54(b). Id. at 705.

Unknown to the panel at the time of its decision, Fadem I had actually been resolved by settlement. The chronology of relevant events is as follows: On September 11, 16 and 17, 1992, Appellants filed notices of appeal in Fadem III, Fadem IV and Fadem V On September 28, 1992, the district court entered an order of settlement in Fadem I, and on January 6, 1993, it entered an order dismissing Fadem I. On March 10, 1994, this appeal was submitted to the panel.

We have not previously addressed the issue of whether we may assume jurisdiction where the appellant files a notice of appeal from a nonfinal order disposing of only some of the consolidated cases, but subsequently, the remaining consolidated cases are finalized. However, in similar situations, we have held that we may assume jurisdiction absent the requisite Rule 54(b) certification where that absence is cured subsequent to the notice of appeal.

In Anderson v. Allstate Ins. Co., 630 F.2d 677, 680-81 (9th Cir.1980), an appeal in a multiple defendant suit, the appellant filed a notice of appeal from a nonfinal order dismissing some, but not all, of the defendants. Subsequently, the remaining defendants were dismissed. We noted that ordinarily we would not have jurisdiction absent Rule 54(b) certification. Id. at 680. However, we held that “subsequent events can validate a prematurely filed appeal” and treated the orders appealed from as final orders because the district court had dismissed the remain ing defendants. Id. at 681. We reasoned that there was “no danger of piecemeal appeal” and that “a practical rather than a technical construction to the finality rule” was appropriate. Id. Likewise, with regard to multiple claim suits, we have held that “judgments whose finality would normally depend upon a Rule 54(b) certificate may be treated as final and appealable under [28 U.S.C.] § 1291 if remaining claims subsequently have been finalized.” Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1075 (9th Cir.1994) (internal quotation and brackets omitted).

In accord with our “pragmatic approach to finality in situations where events subsequent to a nonfinal order fulfill the purposes of the final judgment rule,” id., we hold that if the absence of Rule 54(b) certification in consolidated cases is cured after the notice of appeal is filed and if there is no prejudice to the parties, we have jurisdiction over the appeal. Cf. Kersh v. General Counsel of Assemblies of God, 804 F.2d 546, 547-58 n. 1 (9th Cir.1986) (proper Rule 54(b) certification in consolidated cases obtained after notice of appeal was filed is sufficient to confer appellate jurisdiction), overruled on other grounds by, Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1574 (9th Cir.1990); Freeman v. Hittle, 747 F.2d 1299, 1302 (9th Cir.1984) (same). In this case, although Rule 54(b) certification would ordinarily be required, its absence was cured when the district court dismissed Fadem I and no appeal was taken from that dismissal. Both parties fully briefed the appeal and both request that we exercise jurisdiction in this case; thus, neither party is prejudiced. Consequently, we hold that we have jurisdiction.

The memorandum decision is withdrawn and the petition for rehearing is GRANTED.