     11-4493-cv
     Gusler v. City of Long Beach

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                              August Term, 2012
 6
 7
 8   (Submitted: September 6, 2012            Decided: November 26, 2012)
 9
10                            Docket No. 11-4493-cv
11
12   - - - - - - - - - - - - - - - - - - - - - - -x
13
14   JAY GUSLER,
15
16                      PLAINTIFF-APPELLEE,
17
18               -v.-
19
20   THE CITY OF LONG BEACH, THE LONG BEACH
21   VOLUNTEER FIRE DEPARTMENT, THE LONG BEACH
22   POLICE DEPARTMENT, CHARLES THEOFAN, GARRET
23   ROONEY, LISA HIRSCH, COREY KLEIN, ROBERT
24   AGOSTISI, MARCO PASSARO, JOHN GARGAN, SCOTT
25   KEMINS, STEPHEN FRASER, JOHN McLAUGHLIN,
26   MICHAEL GELBERG, TIMOTHY RADIN,
27
28                      DEFENDANTS-APPELLANTS.
29
30   - - - - - - - - - - - - - - - - - - - - - - -x
31

32         Before:           JACOBS, Chief Judge, Carney, Circuit
33                           Judge, Gleeson, District Judge.*



           *
           The Honorable John Gleeson, United States District
     Judge for the Eastern District of New York, sitting by
     designation.
1        Plaintiff Jay Gusler, pro se, filed an action under 42

2    U.S.C. § 1983, alleging that the defendants unlawfully

3    retaliated against him.    The district court (Feuerstein, J.)

4    dismissed some of the claims against some of the defendants.

5    The remaining individual defendants sought to appeal the

6    denial of their dismissal motion raising a defense of

7    qualified immunity.   However, we lack jurisdiction to

8    consider their appeal because they did not file a timely

9    notice of appeal that specified that they intended to

10   appeal.

11       Dismissed.

12                             Paul F. Millus and Virginia K.
13                             Trunkes, Snitow Kanfer Holtzer &
14                             Millus, LLP, New York, NY for
15                             Defendants-Appellants.

16                             Jay Gusler, pro se, Long Beach, NY,
17                             for Plaintiff-Appellee.

18   DENNIS JACOBS, Chief Judge:

19       This appeal is taken from an order of the United States

20   District Court for the Eastern District of New York

21   (Feuerstein, J.), denying qualified immunity for certain

22   defendants on a retaliation claim asserted under 42 U.S.C.

23   § 1983.   We lack jurisdiction to consider this appeal

24   because the notice fails to comply with the requirement of

25   Federal Rules of Appellate Procedure Rule 3(c)(1)(A) that

26   the notice “specify the party or parties taking the appeal.”

                                     2
1                              BACKGROUND

2        The factual allegations of the underlying suit are

3    irrelevant to the jurisdictional issue except insofar as

4    they assist in accounting for the procedural history.

5        Plaintiff Jay Gusler, pro se, alleges he suffered

6    retaliation for speaking out about issues involving his

7    employer, the Long Beach Fire Department.   His suit names

8    the City of Long Beach, its police department and volunteer

9    fire department, and twelve individual officers and

10   officials of the city.   The individual defendants moved to

11   dismiss for failure to state a claim and on grounds of

12   qualified immunity.   The court denied qualified immunity as

13   to all the individual defendants, but as to eight of them

14   granted the motions to dismiss for failure to state a claim.

15   (Claims against another were withdrawn after he died.)

16   Thus, there remained claims against three: Charles Theofan,

17   Marco Passaro, and John Gargan.

18       A notice of appeal was filed within 30 days.   See Fed.

19   R. App. P. 4(a)(1)(A).   The notice of appeal contained the

20   full caption, naming fifteen defendants (including Theofan,

21   Passaro, and Gargan), but stated in the body: “Notice is

22   hereby given that the defendant Nassau County hereby appeals

23   . . . . to the extent that the [District] Court denied

24   defendants’ motion to dismiss the claims against the

                                   3
1    individual defendants on the grounds of qualified immunity.”

2    (Notice of Appeal, Docket No. 1, Oct. 26, 2011.)      The City

3    of Long Beach is in Nassau County, but Nassau County itself

4    is not a party.

5        After the 30-day period to file a notice of appeal had

6    lapsed, the defendants (without seeking leave of court)

7    filed an amended notice of appeal listing as appellants all

8    twelve individual defendants--without distinguishing between

9    those who had been dismissed and those who had not.      (Only

10   the amended notice was included in the appendix on appeal.)

11

12                            DISCUSSION

13       The requirement that a party seeking to appeal be

14   specified in the notice of appeal is jurisdictional.      Baylis

15   v. Marriott Corp., 906 F.2d 874, 877 (2d Cir. 1990) (citing

16   Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988));

17   accord State Trading Corp. v. Assuranceforeningen Skuld, 921

18   F.2d 409, 412 (2d Cir. 1990).       We are therefore obligated to

19   first satisfy ourselves of our jurisdiction even though the

20   parties here have not raised the issue.      Gonzalez v. Thaler,

21   132 S. Ct. 641, 648 (2012); Reddington v. Staten Island

22   Univ. Hosp., 511 F.3d 126, 131 (2d Cir. 2007).

23       The original notice of appeal recites only that

24   “defendant Nassau County hereby appeals” the decision of the

                                     4
1    district court.   That does not “provide notice to the court

2    [or] to the opposing parties of the identity of the

3    appellant or appellants” so that this Court, the district

4    court, and the plaintiff can “know . . . which parties are

5    bound by the district court’s [decision] [and] which parties

6    may be held liable for costs or sanctions on the appeal.”

7    Baylis, 906 F.2d at 877; accord Torres, 487 U.S. 318 (“The

8    purpose of the specificity requirement of Rule 3(c) [of the

9    Federal Rules of Appellate Procedure] is to provide notice

10   both to the opposition and to the court of the identity of

11   the appellant or appellants.”).    Were it otherwise, “[t]he

12   party could sit on the fence, await the outcome [of the

13   appeal], and opt to participate only if it was favorable.”

14   Gonzalez, 132 S. Ct. at 652.

15       Rule 3(c)(1)(A) requires that a notice of appeal

16   “specify the party or parties taking the appeal by naming

17   each one in the caption or body of the notice” and permits

18   “an attorney representing more than one party [to] describe

19   those parties with such terms as ‘all plaintiffs,’ ‘the

20   defendants,’ ‘the plaintiffs A, B, et al.,’ or ‘all

21   defendants except X.’”   (Emphasis added.)   Obviously, the

22   individual defendants wishing to appeal were not specified

23   in the “body of the notice.”   So the only way that the

24   appeal notice could possibly suffice would be if it is

                                    5
1    enough that the three parties against whom claims remain are

2    among the fifteen defendants listed in the caption of the

3    notice.

4        Because a notice of appeal must “specify the party or

5    parties taking the appeal,” Fed. R. App. P. 3(c)(1)(A), it

6    fails to do so if those parties are listed only in the

7    caption while the body of the notice states that someone

8    else is taking the appeal.   See Minority Employees of the

9    Tenn. Dep’t of Emp’t Sec., Inc. v. State of Tenn. Dep’t of

10   Emp’t Sec., 901 F.2d 1327, 1335-36 & n.5 (6th Cir. 1990) (in

11   banc); Allen Archery, Inc. v. Precision Shooting Equip.,

12   Inc., 857 F.2d 1176, 1176-77 (7th Cir. 1988) (per curiam)

13   (denying petition for rehearing).

14       Those cases pre-date the adoption of the 1993 wording

15   in Rule 3(c)(1)(A) (quoted above) which controls this

16   appeal; but they marked the trend that was codified in 1993.

17   A bit of background may be useful.   In Torres v. Oakland

18   Scavenger Co., 487 U.S. 312 (1988), one of the appellants--

19   unnamed in the body of the notice--was referenced in the

20   caption only by the “et al.” that followed the name of

21   another party.   The Supreme Court held that appellate

22   jurisdiction was lacking: “The specificity requirement[] of

23   Rule 3(c) is met only by some designation that gives fair

24   notice of the specific individual or entity seeking to

                                   6
1    appeal.”   Torres, 487 U.S. at 318.   Some ensuing decisions

2    found it sufficient to list a party in the caption if that

3    party’s “intent to appeal . . . was manifest from a reading

4    of the body of the notice of appeal and the caption.”

5    Mariani-Giron v. Acevedo-Ruiz, 877 F.2d 1114, 1116 (1st Cir.

6    1989) (collecting cases); accord Minority Employees, 901

7    F.2d at 1336 (holding that a notice of appeal is

8    insufficient when the caption is “inconsistent with the body

9    of the notice,” because “any ambiguity” between the caption

10   and the body “will defeat the notice”).   But litigation

11   persisted over various permutations of the facts in Torres.1

12   The Advisory Committee Notes explain that “[t]he [1993]

13   amendment is intended to reduce the amount of [such]

14   satellite litigation.”

15       In this light, the reference in Rule 3(c)(1)(A) to

16   “naming [the party] in the caption” is best understood to

17   mean that the notice of appeal is sufficient even if the

18   party taking the appeal is named nowhere but in the caption

19   if--and only if--it is manifest from the notice as a whole

20   that the party wishes to appeal.   The notice of appeal then



         1
           One example of the litigation spawned by Torres was
     whether an appellate court had jurisdiction over a plaintiff
     not listed in a caption when the body of the notice stated
     that “plaintiffs,” “the plaintiffs,” or “all plaintiffs”
     appealed. See, e.g., Minority Employees, 901 F.2d at 1335.
                                   7
1    meets the requisite of “specify[ing] the party or parties

2    taking the appeal.”2   Fed. R. App. P. 3(c)(1)(A).

3        Our holding finds additional support in the text of

4    Rule 3(c): “An appeal must not be dismissed . . . for

5    failure to name a party whose intent to appeal is otherwise

6    clear from the notice.”    Fed. R. App. P. 3(c)(4) (emphasis

7    added).    The Advisory Notes for the 1993 Amendment to Rule

8    3(c) explain: “The test established by the rule for

9    determining whether . . . designations are sufficient is

10   whether it is objectively clear that a party intended to

11   appeal,”    (emphasis added).   The appeal notice may suffice

12   if it is clear that each of the eleven living individual

13   defendants listed in the caption of the notice--including

14   those against whom all claims had been dismissed--intended

15   to appeal.3   On the other hand, it would plainly fail “[t]he

16   test established by the rule” for a party to be listed in


         2
           So, for example, Rule 3(c)(1)(A) permits “an attorney
     representing more than one party [to] describe those parties
     with such terms as ‘all plaintiffs,’ ‘the defendants,’ ‘the
     plaintiffs A, B, et al.,’ or ‘all defendants except X’”
     because, under such circumstances, it would be unambiguous
     which parties seek to appeal.
         3
           A party who claims immunity but prevails in district
     court on a ground that may subject him to defending an
     appeal after final judgment might have an interest in
     appealing the denial of immunity at the outset. The ability
     to bring such an appeal is an issue that might be reached if
     the eight defendants were appealing; that is what we do not
     know.
                                     8
1    only the caption if the body of the notice leaves

2    uncertainty as to whether that party is appealing.      That is

3    the case here: The three defendants against whom claims

4    remain are among the parties listed in the caption, but the

5    body of the notice states that someone else is appealing the

6    district court’s order.

7        Our holding is also consistent with the purpose of the

8    specificity requirement of Rule 3(c): “to provide notice

9    both to the opposition and to the court of the identity of

10   the appellant or appellants.”       Torres, 487 U.S. at 318;

11   accord Baylis, 906 F.2d at 877; Cotton v. U.S. Pipe &

12   Foundry Co., 856 F.2d 158, 162 (11th Cir. 1988).      Although

13   Torres construed the Rule before the 1993 Amendment, Torres

14   and the post-Amendment Rule both “require[] that the notice

15   of appeal make clear in some fashion the identity of each

16   party desiring to join the appeal.”      Twenty Mile Joint

17   Venture, PND, Ltd. v. Comm’r of Internal Revenue, 200 F.3d

18   1268, 1274 (11th Cir. 1999).

19       It could be argued that, since the notice requirement

20   rules “should be liberally construed,” Marrero Pichardo v.

21   Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004), the specificity

22   requirement of Rule 3(c)(1)(A) should be deemed satisfied if

23   the party taking the appeal is listed in the caption

24   regardless of body of the notice of appeal.      We disagree.

                                     9
1    Such a construction would not ensure that “it is objectively

2    clear” which party or parties “intended to appeal.”    See

3    Fed. R. App. P. 3 advisory committee’s notes to 1993

4    Amendments.   That would undermine the purpose of the Rule:

5    to inform the opposition and the courts of who is appealing.

6    Torres, 487 U.S. at 318.   And it would leave uncertain which

7    parties have waived arguments that are not made, and which

8    parties are bound by the result on appeal.

9        The statement in the text of the notice--that the

10   appeal concerns the district court’s order "to the extent

11   that the Court denied defendants’ motion to dismiss the

12   claims against the individual defendants on the grounds of

13   qualified immunity"--may give reasonable grounds for

14   concluding that only the individual defendants have an

15   interest in appealing.   It does not, however, resolve the

16   ambiguity about whether appeal is sought by all eleven

17   individual defendants still living, considering that eight

18   of them achieved dismissal on other grounds.   And if it

19   should transpire in the future that it was error to dismiss

20   the claims against them, it is not clear whether they would

21   be bound by any decision we issued in this appeal with

22   respect to their entitlement to qualified immunity.    Thus,

23   the notice fails to meet the basic requirement of informing

24   the court and the opposition of who is taking the appeal.

                                   10
1        Finally, the amended notice of appeal does not fix the

2    problem.   The amended notice was filed after the time to

3    appeal had run.   See Fed. R. App. P. 4(a)(1)(A).   Defendants

4    did not seek an extension of time to amend and correct the

5    notice of appeal, Fed. R. App. P. 4(a)(5), and, the time to

6    do so has long since passed, Fed. R. App. P. 4(a)(5)(C).

7                                * * *

8        Because the notice of appeal did not specify which

9    defendants were taking an appeal of the district court’s

10   decision, we lack jurisdiction to consider their appeal.

11   Torres, at 314-15, 317.

12

13                             CONCLUSION

14       Accordingly, the appeal is dismissed for lack of

15   appellate jurisdiction.




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