holding that the court of appeals lacked jurisdiction over a party not specified in the notice of appeal as required by Fed. R.App. P. 3(c)(1)(A); specifically, appellant’s use of "et al.” in the notice of appeal was insufficient to notify defendant or the court that intervenor-plaintiff, one of sixteen intervenors, was an appellant, or to allow them to determine whether he was bound by the adverse judgment
How later courts described this case
- holding that the court of appeals lacked jurisdiction over a party not specified in the notice of appeal as required by Fed. R.App. P. 3(c)(1)(A); specifically, appellant’s use of "et al.” in the notice of appeal was insufficient to notify defendant or the court that intervenor-plaintiff, one of sixteen intervenors, was an appellant, or to allow them to determine whether he was bound by the adverse judgment
- stating that if litigant files papers in fashion that is technically at variance with letter of procedural rule, court may nonetheless find that litigant has complied with rule if litigant’s action is functional equivalent of what rule requires, but holding that FRAP Rule 3(c) requirement to specify party or parties taking appeal was not satisfied
- holding that a court “may not waive the jurisdictional requirements of Rules 3 and 4, even for ‘good cause shown’ under Rule 2, if it finds that they have not been met” and noting that any “harshness” in the application of these Rules “is imposed by the legislature and not by the judicial process”
- stating that F.R.A.P. 3, which is substantially similar to V.R.A.P. 3, requires “some designation that gives fair notice of the specific individual or entity seeking to appeal” and concluding that the use of the phrase “et al.” fails to provide such notice to potential opponents and to the court
Written by the judges who cited it.
Later courts went against this
Reported superseded by statute, as recognized in Retail Flooring Dealers of America, Inc. v. Beaulieu of America, LLC — not on the Supreme Court's list
487 U.S. 312 (1988), superseded by statute as recognized in Retail Flooring Dealers of America, Inc. v. Beaulieu of America, LLC, 339 F.3d 1146, 1148
Court of Appeals for the Ninth CircuitAug 14, 20032 citing opinionsby statuteunconfirmed confidenceRead itQuestioned by Calma v. Brown, 9 Vet. App. 11 (1996)
If Torres is no longer good law as to its holding that the content requirements of FRAP Rule 3(c) are jurisdictional, then this Court could hold that the content requirements of Court Rule 3(c) could be waived by the Court under Court Rule 2.
Distinguished
Distinguished by In Re Cascade Roads, Inc., Debtor. United States of America v. Peter H. Arkison, Trustee, 34 F.3d 756 (1994)
487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), is inapposite because it involved the failure to designate certain
Distinguished by Citizens Bank & Trust Co. v. Case (In re Case), 937 F.2d 1014 (1991)
We conclude that the specificity requirement set out in Torres is inapplicable to a notice of appeal from a bankruptcy court judgment or order.
Distinguished by Minority Employees of the Tennessee Department of Employment Security, Inc. v. State of Tennessee, Department of Employment Security, 901 F.2d 1327 (1990)
In Ford v. Nicks, supra, for example, a panel of this court distinguished Torres and accepted a notice containing “et al.” The court was persuaded that the use of the definite article in “the defendants” in the body of the notice of appeal sufficiently designated the appealing parties, even though the notice of appeal was captioned, in relevant part, “Chancellor Roy S. Nicks, et al. Defendants.” 866 F.2d at 869.
Distinguished by James William Pope v. Mississippi Real Estate Commission, 872 F.2d 127 (1989)
Therefore, in the limited context of this two party action, we distinguish Torres.
The opinion
Justice Brennan,
dissenting.
“The Federal Rules,” we have previously observed, “reject the approach that pleading is a game of skill in which one mis *320 step by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.” Foman v. Davis, 371 U. S. 178, 181-182 (1962). Although the Court today pays lip-service to the spirit of liberality animating the Federal Rules, it nevertheless holds that the Court of Appeals below lacked jurisdiction over petitioner’s suit because his lawyer’s secretary inadvertently omitted his name from the notice of appeal filed on behalf of him and his 15 coplaintiffs. Eschewing any inquiry into whether this omission was excusable or whether respondent suffered any prejudice as a result of it, the Court concludes that this “misstep by counsel” decides the outcome of petitioner’s case because compliance with the party-specification requirement of Federal Rule of Appellate Procedure 3(c) is a jurisdictional prerequisite to appellate review. Nothing in the Federal Rules, however, compels such a construction of Rule 3(c), which I believe to be wholly at odds with the liberal policies underlying those Rules, as well as our own prior construction of them.
As the Court notes, Federal Rule of Appellate Procedure 2 permits the courts of appeals, upon a showing of good cause, to “suspend the requirements or provisions of any of these rules in a particular case,” except as otherwise provided by Rule 26(b). Rule 26(b), in turn, permits appellate courts to enlarge the time established by the Rules for any act, except the “time for filing a notice of appeal” set out in Rule 4. On their face, then, Rules 2 and 26(b) together confer broad equitable discretion on the courts of appeals to excuse compliance with the requirements of any and all Rules save the time limitations of Rule 4. Notably, neither mentions Rule 3(c) as falling outside the purview of this broad equitable power.
In the face of this express policy favoring a liberal construction of all the Rules except the timeliness requirements of Rule 4, the Court nevertheless holds that Rule 3(c)’s party- *321 specification requirement must be deemed jurisdictional, for the “mandatory nature of the time limits contained in Rule 4 would be vitiated if courts of appeals were permitted to exercise jurisdiction over parties not named in the notice of appeal.” Ante, at 315. This unsupported assertion, however, is only correct if we assume the answer to the question at issue here, i. e., that “[t]he failure to name a party in a notice of appeal . . . constitutes a failure of that party to appeal.” Ante, at 314. If, on the other hand, we assume, as several Courts of Appeals have, that an unnamed party effectively appeals where a notice is timely filed and the unnamed party’s intention to join in the appeal is clear to all and prejudicial to none, see, e. g., Harrison v. United States, 715 F. 2d 1311, 1312-1313 (CA8 1983); Williams v. Frey, 551 F. 2d 932, 934, n. 1 (CA3 1977), then Rule 4’s mandatory time limitations would remain inviolate. The Court itself acknowledges that a “litigant’s action [may be] the functional equivalent of what the rule requires.” Ante, at 317. It is obvious, however, that the initial determination whether a given act satisfies any test of “functional equivalence” depends not at all on the time limitations prescribed by Rule 4; it is only after a court decides that a given act is not the functional equivalent of filing a notice of appeal that the necessity of amending any notice that was filed, and hence the necessity of enlarging the time requirements of Rule 4, arise.
The Court purports to find support for its jurisdictional construction of Rule 3(c) in the Advisory Committee Notes, which explain that Rules 3 and 4 “combine to require that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal,” and that “[bjecause the timely filing of a notice of appeal is mandatory and jurisdictional. . . compliance with the provisions of those rules is of the utmost importance.” 28 U. S. C. App., p. 467. Arguing that this admonition does not differentiate *322 between the various requirements of the two Rules, the Court concludes that all the requirements of both form “a single jurisdictional threshold.” Ante, at 315. I believe the Advisory Committee Note lends no support to the result the Court reaches today. The comment itself says only that the “timely filing” requirement is mandatory and jurisdictional; significantly, the Advisory Committee stopped short of describing Rules 3 and 4 as jurisdictional in their entirety. Moreover, it is apparent from the context that the Advisory Committee did not intend to incorporate by reference every requirement of the two Rules, but rather, only those provisions discussed in the first sentence of the comment. Rule 3(a) provides that an appeal “shall be taken by filing a notice of appeal with the clerk of the district court within the time allowed by Rule 4.” It is thus this provision — which is tracked nearly word for word in the Advisory Committee Note — and not every enumerated requirement of Rule 3, that combines with Rule 4 to form the jurisdictional requirement “that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal.”
The Court’s broader reading of the Note, and its jurisdictional construction of the Rule, are flatly inconsistent with Foman v. Davis, supra, where we held that Rule 3 (c)’s judgment-designation requirement is not jurisdictional. That requirement, which immediately precedes the party-specification provision, states that a notice of appeal “shall designate the judgment, order, or part thereof appealed from.” Although the Court today suggests that in Foman we simply forgave mere technical noncompliance with the Rule, see ante, at 316, the lower court in that case expressly stated that the second notice of appeal in question made no reference to the judgment for which review was sought, and that the first notice of appeal was premature and thus void. Foman v. Davis, 292 F. 2d 85, 87 (CA1 1961). Because we *323 affirmed the lower court’s disposition of the first notice, the lack of a designated judgment in the second notice was no more nor less a “mere technicality” than the absence of petitioner’s name from the notice of appeal filed in this case: both the notice here and in Foman omitted precisely the information required by Rule 3(c). In Foman, we nevertheless held that the Court of Appeals should have “treated the [second notice of] appeal... as an effective, although inept, attempt to appeal” because when the two ineffective notices were read together, “petitioner’s intention to seek review . . . was manifest.” 371 U. S., at 181 (emphasis added).
Petitioner Torres makes precisely the same claim here, arguing that appellate counsel’s presentation of the case — in which all issues in the case were treated as common to all the plaintiffs, named and unnamed in the District Court — and the inclusion of 15 of the 16 named intervenors in the notice of appeal, made his intention to join in the appeal manifest. The Court, however, simply dismisses this contention by asserting that “petitioner failed to comply with the specificity requirement of Rule 3(c)”; failed to “file the functional equivalent of a notice of appeal”; and was “never named or otherwise designated, however inartfully, in the notice of appeal filed by the 15 other intervenors.” Ante, at 317. These statements, however, are wholly conclusional, and in no way distinguish petitioner’s omission from that involved in Foman.
In 1979, Rule 3(c) was amended to provide that “[a]n appeal shall not be dismissed for informality of form or title of the notice of appeal.” The Advisory Committee Note accompanying this amendment explained that “so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rale has been complied with.” Advisory Committee Note to Rule 3, 28 U. S. C. App., p. 467 (emphasis added).' The function of a notice of appeal, of course, is to notify the court of appeals *324 and the opposing party that an appeal is being taken, see Cobb v. Lewis, 488 F. 2d 41, 45 (CA5 1974) (cited with approval in Advisory Committee Note to Rule 3), which in turn ensures that the appellees are not prejudiced in any way by the appeal and that the appellants have made the requisite commitment to assuming the obligations of the appeal, particularly the obligation to pay any costs and fees that the appellate court might ultimately assess. These are factual inquiries that the courts of appeals are entirely capable of undertaking, and that better serve the purposes supposedly advanced by the bright-line jurisdictional rule the Court announces today. *
After today’s ruling, appellees will be able to capitalize on mere clerical errors and secure the dismissal of unnamed appellants no matter how meritorious the appellant’s claims and no matter how obvious the appellant’s intention to seek appellate review, and courts of appeals will be powerless to correct even the most manifest of resulting injustices. The Court identifies no policy supporting, let alone requiring, this harsh rule, which I believe is patently inconsistent not only with the liberal spirit underlying the Federal Rules, but with Rule 2’s express authorization permitting courts of appeals to forgive noncompliance where good cause for such forgiveness *325 is shown. Instead, the Court simply announces by fiat that the omission of a party’s name from a notice of appeal can never serve the function of notice, thereby converting what is in essence a factual question into an inflexible rule of convenience. Because the Court has failed to demonstrate that the notice filed in this case failed to apprise the court below or respondents that petitioner intended to join in the appeal taken by his 15 coplaintiffs, I would reverse the case and remand for the necessary factual inquiry.
Accordingly, I dissent.
Although the Court’s jurisdictional approach to the specificity requirement provides no greater protection to litigants than the equitable approach adopted by several Courts of Appeals, like all bright-line tests its application is more certain and predictable. This advantage, however, is of marginal significance inasmuch as few courts have found the notice function satisfied where a party’s name is omitted, and those that have have acknowledged that it is the exceptional case in which such a finding is even possible. See Harrison v. United States, 715 F. 2d 1311, 1313 (CA8 1983) (“[T]his is a very rare but appropriate case for a liberal construction of FRAP 3”); Williams v. Frey, 551 F. 2d 932, 934, n. 1 (CA3 1977) (“Under most circumstances, the designation of the party appellant in the notice of appeal will govern”). Certainly no responsible lawyer would intentionally omit a party’s name in reliance on an equitable construction of the notice of appeal.