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784 F.2d 875

Docket No. 85-2183.

Mooney v. Frierdich

Eighth Circuit Court of Appeals

Submitted Dec. 9, 1985.

Decided Feb. 27, 1986.

Eighth Circuit Court of Appeals · decided 1986-02-27

2 counsel of record

Key passage — most relied on by later courts

“if no reasons are furnished as to why that discretion was exercised, [its] judgment as to the propriety of certification is necessarily speculative.”

quoted by 1 later decision, including Elliott v. Archdiocese of New York

“whether there was an abuse of discretion”

quoted by 1 later decision, including Elliott v. Archdiocese of New York

Applies 28 U.S.C. § 1291

Relies on Hayden v. McDonald · Moorhead Construction Co., Inc., a Corporation, Appellee-Cross-Appellant v. City of Grand Forks, a Municipal Corporation, Appellant-Cross-Appellee · 616 F. Supp. 1417 - Mooney v. Brymer

Good law ✅— No negative treatment on recordhow we know

Opinion by GIBSON · Decided 1986-02-27

How this case has been cited

Cited by 11 later decisions — most recently April 2013

4 federal appellate · 1 district · 5 state decisions

301986199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Terrence L. Farris, Clayton, Mo., for appellants.

¶2There was no brief filed by the appellee.

¶3Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

¶4PER CURIAM.

¶5Charles Brymer and others appeal from a district court order dismissing their third-party complaint against Michael Frierdich for lack of jurisdiction, 616 F.Supp. 1417 (E.D.Mo.1985). In light of the apparent lack of any certification contemplated by Fed.R.Civ.P. 54(b), we ordered appellants to show cause why their appeal should not be dismissed as premature.

¶6In a timely response to our order appellants incorporated by reference a document filed in the district court which appellants believe is an appropriate Rule 54(b) certification sufficient to confer jurisdiction on this court.1 We do not agree.

¶7It has been noted that an order dismissing a third party complaint which is not certified by the district court under Rule 54(b) is not a final appealable order. Moorhead Const. Co. v. City of Grand *876Forks, 508 F.2d 1008, 1011 n. 1 (8th Cir. 1975). We, of course, are not required to accept Rule 54(b) certifications from district courts. Such certifications are reviewable on an abuse-of-discretion basis. Hayden v. McDonald, 719 F.2d 266, 268-69 (8th Cir.1983) (per curiam).

¶8Moreover, Rule 54(b) permits entry of judgment “only upon an express determination that there is no just reason for delay and upon express direction for the entry of judgment.” Although this circuit has declined to make mandatory a statement of reasons in connection with Rule 54(b), we cannot ignore the plain command of that rule. For if under Rule 54(b) our review of the district court’s decision is limited to determining whether there was an abuse of discretion, and if no reasons are furnished as to why that discretion was exercised, our judgment as to the propriety of certification is necessarily speculative. Hayden, 719 F.2d at 269. Where, as here, the attempted certification neither complies substantially with the mandatory language of the rule nor provides any basis from which we may determine that the district court exercised any discretion, we are constrained to hold that the dismissal of the third party complaint is not a final appealable order under 28 U.S.C. § 1291. Consequently, we have no jurisdiction and the appeal is dismissed as premature.2

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