Sam Rabin v. Henry Cohen, B & H Processing Co., and Peterson Manufacturing Co., Inc.

This is a case which illustrates the procedural pitfalls which await litigants who fail to obtain a final judgment in compliance with Rule 58’s separate order doctrine. Fed.Rules Civ.Proc., Rule 58. The district court dismissed the plaintiff’s complaint after granting summary judgment in favor of defendants. A timely notice of appeal was filed by plaintiff and timely notices of cross-appeal were filed by defendants as to that part of the district judge’s order which denied in part their motion for summary judgment. On May 9, 1977, this court dismissed all three appeals for failure to comply with Rule 58, stating in pertinent part, “Upon entry of a judgment, if a new appeal is taken, then upon stipulation or motion the record in these appeals may be transferred to the new appeal.”

At this point, confusion set in. Defendants note that no procedural rule nor court rule explicitly states whether in this situation all sides need file new notices of appeal. They state, through their attorneys, that the May 9 order was ambiguous and that they therefore entered into a series of oral communications with the Clerk’s Office of this court, by which they were led to believe that only the…