Barnett W. Woodby, Plaintiff-appellee, v. the Chesapeake and Ohio Railway Company, a Virginia Corporation, Defendant and Third-party Plaintiff-appellant, v. Edward Laverne Burghardt et al., Third-party Defendants-appellees, 345 F.2d 668 (6th Cir. 1965)

"Plaintiff and third-party defendants both having moved for a dismissal of the third-party complaint filed in this action, and

"This Court having considered briefs and memorandums [sic] of law submitted by counsel for all the parties in this action with respect to the merits of the third-party complaint and the motions for dismissal.

"IT IS ORDERED that said motions be and the same are granted and the third-party complaint filed in this action be and the same hereby is dismissed."

"(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, 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, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. As amended Dec. 27, 1946, eff. March 19, 1948; Apr. 17, 1961, eff. July 19, 1961."

For example, the Ninth Circuit in CBS Steel & Forge Co. v. Shultz, 191 F.2d 683, and the Fourth Circuit in Ford Motor Co. v. Milby, 210 F.2d 137, summarily held that the order was not a final decision and not appealable. In General Electric Co. v. Irvin, 274 F.2d 175 (C.A. 6), and General Taxicab Ass'n v. O'Shea, 71 App.D.C. 327, 109 F.2d 671 the courts based their decisions on the "sound discretion of the district court" criteria, thus treating the order as appealable

In Pabellon v. Grace Line, Inc., 191 F.2d 169 (C.A. 2), cert. denied, 342 U.S. 893, 72 S. Ct. 201, 96 L. Ed. 669, the court held that compliance with 54(b) would allow appeal, but in Flegenheimer v. General Mills, Inc., 191 F.2d 237 (C.A. 2), a different panel of judges of the same court declined to follow Pabellon.

This note is quoted as follows in 3A Barron & Holtzoff, Federal Practice and Procedure, p. 130 (Wright ed. 1958, Supp.1964):

"This rule permitting appeal, upon the trial court's determination of `no just reason for delay,' from a judgment upon one or more but less than all the claims in an action, has generally been given a sympathetic construction by the courts and its validity is settled. Reeves v. Beardall, 316 U.S. 283, 62 S. Ct. 1085, 86 L. Ed. 1478 (1942); Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S. Ct. 895, 100 L. Ed. 1297 (1956); Cold Metal Process Co., v. United Engineering & Foundry Co., 351 U.S. 445 (1956).

"A serious difficulty has, however, arisen because the rule speaks of claims but nowhere mentions parties. A line of cases has developed in the circuits consistently holding the rule to be inapplicable to the dismissal, even with the requisite trial court determination, of one or more but less than all defendants jointly charged in an action, i. e. charged with various forms of concerted or related wrongdoing or related liability. See Mull v. Ackerman, 279 F.2d 25 (2d Cir. 1960); Richards v. Smith, 276 F.2d 652 (5th Cir. 1960); Hardy v. Bankers Life & Cas. Co., 222 F.2d 827 (7th Cir. 1955); Steiner v. 20th Century-Fox Film Corp., 220 F.2d 105 (9th Cir. 1955). For purposes of Rule 54(b) it was arguable that there were as many `claims' as there were parties defendant and that the rule in its present text applied where less than all of the parties were dismissed, cf. United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213, 215 (2d Cir. 1955); Bowling Machines, Inc. v. First Nat. Bank, 283 F.2d 39 (1st Cir. 1960); but the Courts of Appeals are now committed to an opposite view.

"The danger of hardship through delay of appeal until the whole action is concluded may be at least as serious in the multiple-parties situations as in multiple-claims cases, see Pabellon v. Grace Line, Inc., 191 F.2d 169, 179 (2d Cir. 1951), cert. denied, 342 U.S. 893 [72 S. Ct. 201, 96 L. Ed. 669] (1951), and courts and commentators have urged that Rule 54 (b) be changed to take in the former. See Reagan v. Traders & General Ins. Co., 255 F.2d 845 (5th Cir. 1958); Meadows v. Greyhound Corp., 235 F.2d 233 (5th Cir. 1956); Steiner v. 20th Century-Fox Film Corp., supra; 6 Moore's Federal Practice ¶ 54.34 [2] (2d ed. 1953); 3 Barron & Holtzoff, Federal Practice & Procedure § 1193.2 (Wright ed. 1958); Developments in the Law — Multiparty Litigation, 71 Harv. L. Rev. 874, 981 (1958); Note, 62 Yale L.J. 263, 271 (1953); Ill.Ann.Stat. ch. 110, § 50(2) (Smith-Hurd 1956). The amendment accomplishes this purpose by referring explicitly to parties.

"There has been some recent indication that interlocutory appeal under the provisions of 28 U.S.C. § 1292(b), added in 1958, may now be available for the multiple-parties cases here considered. See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960). The Rule 54(b) procedure seems preferable for those cases, and § 1292(b) should be held inapplicable to them when the rule is enlarged as here proposed. See Luckenbach Steamship Co., Inc., v. Muehlstein & Co., Inc., 280 F.2d 755, 757 (2d Cir. 1960); 1 Barron & Holtzoff, supra, § 58.1 P. 321 (Wright ed. 1960)."