# Murphy v. Keystone Steel & Wire Co.

> Court of Appeals for the Seventh Circuit · July 28, 1995 · 61 F.3d 560

URL: https://www.frixlaw.com/law-library/cases/6935573

## Case

- **Full name:** William R. MURPHY, W. Darrel McCabe, Richard L. Adkins v. KEYSTONE STEEL & WIRE COMPANY, a DIVISION OF KEYSTONE CONSOLIDATED INDUSTRIES, INCORPORATED, a Delaware Corporation, and Keystone Steel & Wire Company Health Care Benefit Plan
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** July 28, 1995
- **Citations:** 61 F.3d 560
- **Precedential status:** Published
- **Opinion:** Dissent by Rovner
- **Judges:** Manion, Norgle, Rovner
- **Cited by:** 105 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6935573

## How later opinions describe it (automated extraction)

- finding that a notice of appeal under Fed.R.App. P. 3(c) must clearly indicate if a *439 putative class representative is appealing on behalf of the class, and concluding further that the named representative’s claim was properly before the court
- finding that a notice of appeal under Fed. R.App. P. 3(c) must clearly indicate if a putative class representative is appealing on behalf of the class, and concluding further that the named representative's claim was properly before the court
- noting "[t]he party claiming that a contract is ambiguous must first convince the [court] that this is the case . . . and must produce objective facts, not subjective and self-serving testimony, to show that a contract which looks clear on its face is actually ambiguous"
- noting "[l]he party claiming that a contract is ambiguous must first convince the [court] that this is the case ... and must produce objective facts, not subjective and self-serving testimony, to show that a contract which looks clear on its face is actually ambiguous”
- rejecting an argument, in an ERISA case, that a welfare benefit plan should be read in isolation from a CBA, where the CBA and plan were negotiated together, rested on the same consideration, and the CBA expressly incorporated the plan terms

## Opinion text

ILANA DIAMOND ROVNER, Circuit Judge,
dissenting in part.
I join the court in affirming the district court’s judgment, but I cannot agree that we lack jurisdiction over those class members not named in the caption of the notice of appeal. (See ante at 569-71.) As I read the recent amendments to Fed.R.App.P. 3(c), the *572 notice here was plainly sufficient to bring the entire class before the court.
The operative sentence addressing class actions, which was added by the December 1, 1993 amendments to Rule 3(c), provides as follows: “In a class action, whether or not the class has been certified, it is sufficient for the notice to name one person qualified to bring the appeal as representative of the class.” Plaintiffs’ notice here did exactly that. Indeed, it named three persons “qualified to bring the appeal as representative[s] of the class.” The majority reasons, however, that the named plaintiffs were required to provide in their notice some objective sign that they were appealing as class representatives rather than as individuals. (Ante at 570-71.) Yet such a requirement ignores the plain language of the amended rule, which simply is not “susceptible to two readings.” (Cf. ante at 570.) The amended rule does not insist that the notice name one person as representative of the class; it instead requires the notice “to name one person qualified to bring the appeal as representative of the class.” Fed.R.App.P. 3(c) (emphasis added). The majority’s view thus gives no effect to the words I have italicized, and especially to the operative word “qualified.” It instead reads the sentence as if the italicized words had been omitted. See, e.g., Ratzlaf v. United States, — U.S. —, —, 114 S.Ct. 655, 659 , 126 L.Ed.2d 615 (1994) (statutory language should not be treated as surplusage in any setting).
The majority, in fact, pays scant attention to the sentence addressing class actions and focuses instead on the rule’s final, more general statement: “[a]n appeal will not be dismissed ... for failure to name a party whose intent to appeal is otherwise clear from the notice.” Fed.R.App.P. 3(c). But that sentence is in the nature of a “savings clause” and should not be read to impose an additional requirement not imposed by the class action sentence itself. Granted, the notes of the Advisory Committee also set out an objective test for judging a party’s intentions (see ante at 570-71), yet that test does not purport to apply to a class action, which is a special breed of case addressed in the rule by a separate sentence and in the committee notes by a separate paragraph. And both the rule and the notes require that a notice name only “one person qualified to bring the appeal as a representative of the class.” Fed.R.App.P. 3(c) & advisory comm, note to subdivision (c) (1993).
The majority also is concerned that my reading of the amended rule would create confusion because the notice of appeal would not necessarily reveal whether the named plaintiffs in an uncertified class action intended to appeal the order denying class certification. (See ante at 570-71.) But Rule 3(c) requires parties to also designate in their notice “the judgment, order, or part thereof appealed from,” and by complying with that directive, the named plaintiffs would necessarily notify putative class members and this court whether they are challenging the district court’s denial of class certification.
Finally, the majority’s reliance on Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir.1994), is puzzling. (See ante at 571 (“our interpretation of amended Rule 3(e) comports with that of the only circuit to have discussed this issue.”).) That decision addressed the earlier version of Rule 3(c) and included only a single footnote briefly mentioning the 1993 amendment. 42 F.3d at 1571 -72 & n. 19. The Tenth Circuit simply noted in that regard that “[t]he preferred means of identifying a class of appellants is by naming a designated member ‘as representative of the class’” (id. at 1572 n. 19 (emphasis added)), and I most certainly agree. But the “preferred means” is not necessarily the only means available under the amended rule. 1 Olenhouse is therefore *573 not authority for the majority’s view here that because the “representative” designation was omitted from the notice, only the named plaintiffs are properly before the court.
For these reasons, I would hold that plaintiffs’ notice of appeal was sufficient to bring the entire class before the court.
. Indeed, Olenhouse found a notice using an “et al." designation sufficient to confer jurisdiction over the entire class even under the pre-amendment version of the rule. 42 F.3d at 1572 . The majority responds, however, “that what is merely preferable in the Tenth Circuit is mandatory in the Seventh, because, unlike the Tenth Circuit, this court has held that 'et al.' is not sufficient to preserve a class appeal." (Ante at 571 n. 7 (citing Ooley v. Schwitzer Div., Household Mfg., Inc., 961 F.2d 1293 , 1305-06 (7th Cir.), cert. denied, — U.S. —, 113 S.Ct. 208 (1992))). But Ooley, like Olenhouse , was decided under the earlier version of Rule 3(c), and there is no question in my mind that the notice there would be deemed sufficient to bring the entire class *573 before the court under the 1993 amendments. Cf. Ford v. Elsbury, 32 F.3d 931, 933-34 (5th Cir.1994). As I have explained in the text, however, the sentence in the amended rule addressing class actions does not require even the et al. designation.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6935573. Public record. Not legal advice.