General Motors Corporation, Etc., Plaintiff-appellant, v. Dade Bonded Warehouse, Inc., et al., Defendants-appellees, 498 F.2d 327 (5th Cir. 1974)Annotate this Case
Aug. 5, 1974
William G. Earle, Miami, Fla., for plaintiff-appellant.
Harold C. Knecht, Jr., Coral Gables, Fla., for Moore Pipe & Sprinkler.
Dan G. Wheeler, Jr., Miami, Fla., for Blanche R. Bergin.
Hugh L. Wood, Jeanne Heyward, miami, Fla., for Dade Bonded Warehouse.
Before THORNBERRY, COLEMAN and AINSWORTH, Circuit Judges.
In this action General Motors asserted claims against both Dade Bonded Warehouse, Inc. and Blanche R. Bergin, executrix of the estate of Cecil A. Bergin. Although the jury was charged on the various theories of liability possibly applicable to Bergin, their verdict did not mention the claim against her. Furthermore, a careful search of the record reveals that no judgment was ever entered on this claim, although the district court did deny General Motors' motion for a new trial against Bergin. Thus the judgment fails to adjudicate all the claims and liabilities of all the parties, as required by F.R.Civ.P. 54(b). No certificate under F.R.Civ.P. 54(b) appears in the record. We therefore dismiss the appeal for want of jurisdiction. 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil 2781; F.R.Civ.P. 58; 28 U.S.C. 1291. See e.g., Anderson v. Robinson, 5 Cir. 1974, 494 F.2d 45; Foret v. McDermott, 5 Cir. 1973, 484 F.2d 992. See also, United States v. Indrelunas, 1973, 411 U.S. 216, 93 S. Ct. 1562, 36 L. Ed. 2d 202; State National Bank of El Paso v. United States, 5 Cir. 1974, 488 F.2d 890.
Should the district court enter a new judgment on General Motors' claim against Dade Bonded Warehouse, Inc., and issue the Rule 54(b) certificate, the appeal from that judgment may be submitted on the record and briefs prepared for this appeal, supplemented by the new judgment and certificate, and on the oral arguments heretofore heard.