                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2006

Morton Intl Inc v. AE Staley Mfg Co
Precedential or Non-Precedential: Precedential

Docket No. 04-3936




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                                       PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                         No. 04-3936


             MORTON INTERNATIONAL, INC.;
           VELSICOL CHEMICAL CORPORATION;
              NWI LAND MANAGEMENT CO.;
           FRUIT OF THE LOOM, INCORPORATED

                              v.

      A.E. STALEY MANUFACTURING COMPANY; AIRCO
                        INDUSTRIAL GASES,
     f/k/a Airco Inc, a/k/a Air Reduction Company, Inc; ALLIED
    CHEMICAL CORPORATION; ALUMINUM COMPANY OF
                         AMERICA, (ALCOA);
 AMERICAN CYANAMID COMPANY; ARMSTRONG WORLD
                             INDUSTRIES;
ARSYNCO, INC.; BAILEY CONTROLS CO, f/k/a Bailey Meter Co;
  BECTON-DICKINSON & CO, INC.; BELFORT INSTRUMENT
                            CO; BELMONT
  METALS, INC., f/k/a Belmont Smelting & Refining Works, Inc.;
 CANADIAN GYPSUM COMPANY; CANRAD, INC., (c/o Canrad
                                Precision
   Industries, Inc.); CIBA-GEIGY CORPORATION; COLUMBIA
                             UNIVERSITY;
   CONOPCO, INC., (Cheeseborough Ponds U.S.A. Co. Division);
                                COSAN
 CHEMICAL CORP.; CROUSE-HINDS SEPCO CORPORATION,
         f/k/a CONNECTICUT INTERNATIONAL; CROWN
 ZELLERBACH CORP., a/k/a James River Corporation of Nevada;
            CURTISS-WRIGHT; DAY & BALDWIN, f/k/a
C-P Pharmaceuticals, Inc.; DIAMOND SHAMROCK CHEMICALS
                              COMPANY,
  a/k/a Occidental Electrochemicals Corporation; DOW-CORNING
                                 CORP;
    DURA ELECTRIC LAMP CO., INC.; DURACELL, INC., (as
                              successor to
  Mallory Battery Co., Inc.); E.I. DUPONT DE NEMOURS & CO.,
                                  INC.;
    EASTERN SMELTING & REFINING CORP.; ENGLEHARD
         MINERALS AND CHEMICALS CORPORATION;
        ENVIRONMENTAL CONTROL SYSTEMS; EXXON
          CORPORATION, U.S.A.; FEDERAL AVIATION
ADMINISTRATION; GARFIELD BARING CORPORATION, f/k/a
      Garfield Smelting & Refining Co.; GENERAL ELECTRIC
 COMPANY; GENERAL COLOR CO., INC.; GENERAL SIGNAL
CORPORATION; GILMARTIN INSTRUMENT CO.; HARTFORD
         ELECTRIC SUPPLY COMPANY, INC.; HENKEL
    CORPORATION; HOFFMANN-LAROCHE, INC.; HUDSAR
                         INCORPORATED;
       INMAR ASSOCIATES, INC.; INMAR REALTY, INC;
                         INTERNATIONAL
     NICKEL, INC.; J.M. NEY COMPANY; K.E.M CHEMICAL
                            COMPANY;
  KOPPERS, a/k/a Beazer East, Inc; MAGNESIUM ELEKTRON;
                             MARVIN
 H. MAHAN; MARISOL, INC.; MERCK & CO., INC.; MERCURY
                           ENTERPRISE
  INC., f/k/a Mercury Instrument Service; MINNESOTA MINING
                                AND
 MANUFACTURING COMPANY; MOBIL OIL CORPORATION;
    MT. UNION COLLEGE; M.W. KELLOGG CO.; NATIONAL
  LEAD CO, (Goldsmith Brothers Division); NEPERA, INC; NEW
        ENGLAND LAMINATES CO., INC.; NEW JERSEY
      INSTITUTE OF TECHNOLOGY, f/k/a Newark College of
                            Engineering;
    NEW YORK CITY TRANSIT AUTHORITY; NORTHEAST
                          CHEMICAL CO.,
         (Northeast Chemical & Industrial Supply Co., Inc.);
   OCCIDENTAL CHEMICAL CORPORATION, (as successor to
                         Diamond Shamrock
  Chemical Co., formerly Diamond Shamrock Corporation); OLIN
                               CORP,
  f/k/a Olin Mathieson Chemical Corporation; PEASE & CURREN
                                INC;
PFIZER, INC; PSG INDUSTRIES, INC., f/k/a Philadelphia Scientific
    Glass, Inc.; PHILLIPS & JACOBS, INC.; PUBLIC SERVICE
                           ELECTRIC &
     GAS, (PSE&G); PURE LAB OF AMERICA; RANDOLPH
                      PRODUCTS COMPANY;
 RAY-O-VAC DIVISION OF ESB, INC., (ESB, Inc.); REDLAND
                          MINERALS LTD;
   D.F. GOLDSMITH CHEMICAL & METAL CORPORATION;
                         MALLINCKRODT

                               2
    CHEMICAL, INC.; RHONE-POULENC, INC., f/k/a Alcolac
                             Chemical
Company/Guard Chemical Company; ROYCE ASSOCIATES, f/k/a
                              Royce
 Chemical; RUTGERS, THE STATE UNIVERSITY; SCIENTIFIC
                           CHEMICAL
  PROCESSING, INC.; SCIENTIFIC CHEMICAL TREATMENT
                            CO., INC.;
     SCIENTIFIC INC; SEAFORTH MINERAL & ORE CO.;
                   SPARROW REALTY, INC.;
      STATE UNIVERSITY OF NEW YORK AT BUFFALO,
                   (S.U.N.Y.A.B.); SYLVANIA
    GTE; TENNECO, INC; TRANSTECH INDUSTRIES, INC;
     UEHLING INSTRUMENT CO., INC.; UNION CARBIDE
      CORPORATION; UNIVERSAL OIL PRODUCTS CO.;
 UNIVERSITY OF ILLINOIS; UNIVERSITY OF MINNESOTA;
VAR-LAC-OID CHEMICAL COMPANY, INC.; W.A. BAUM CO.,
INC.; WAGNER ELECTRIC COMPANY; WESTERN MICHIGAN
 UNIVERSITY; WESTINGHOUSE ELECTRIC CORPORATION;
JOHN DOE 1-100; GEORGE VAN CLEVE; THE CONNECTICUT
  LIGHT AND POWER COMPANY, f/k/a Hartford Electric Light
   Company; GTE OPERATIONS SUPPORT INCORPORATED;
  ALLIEDSIGNAL, INC.; BEAZER EAST, INC; JERSEY CITY
               MANAGEMENT, INC.; ASHLAND
  CHEMICAL CO., a Division of Ashland Oil, Inc.; BASF CORP,
    and as successor to Wyandotte Chemical Corp., a/k/a Inmont
                Corporation; FMC CORPORATION

                                   Morton International Inc.,

                                                 Appellant


         On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. Civ. No. 96-03609)
         Honorable Katharine S. Hayden, District Judge


                      Argued June 7, 2006

BEFORE: AMBRO, FUENTES, and GREENBERG, Circuit Judges

                   (Filed: August 18, 2006)

                               3
Kim Hoyt Sperduto (argued)
T. Stewart Rauch
The Sperduto Law Firm
2021 L Street, N.W.
Second Floor
Washington, DC 20036

Steven M. Richman
Sandra A. Jeskie
Duane Morris
240 Princeton Avenue
Suite 150
Hamilton, NJ 08619

  Attorneys for Appellee

Samuel P. Moulthrop (argued)
Alexa Richman-La Londe
Andrew M. Contreras
Riker, Danzig, Scherer, Hyland
& Perretti
Headquarters Plaza
One Speedwell Avenue
Morristown, NJ 07962-1981

Robert A. Lonergan
Vice President and General Counsel
Ellen S. Friedell
Associate General Counsel
Rohm and Haas Company
100 Independence Mall West
Philadelphia, PA 19106

  Attorneys for Appellant


                   OPINION OF THE COURT


GREENBERG, Circuit Judge.

                       I. INTRODUCTION

                                 4
         This matter comes on before the court on an appeal by Morton
International, Inc. (“Morton”) from the district court’s order entered
on March 30, 1999, dismissing Morton’s contribution claim against
Redland Minerals, Ltd. (“RML”) for want of personal jurisdiction.
The contribution action succeeded a state court proceeding in which
the court found Morton and various other entities jointly and severally
liable for mercury contamination in the area of Berry’s Creek in
Bergen County, New Jersey. Morton later filed an action against
RML and other defendants seeking contribution. The district court
dismissed RML from the action for want of personal jurisdiction on
March 30, 1999, and granted summary judgment to another
defendant, Tennessee Gas Pipeline Company (“Tenneco”), on July
23, 2001. Thereafter, with the remaining parties’ consent and at their
request, the court dismissed the case without prejudice as to the
remaining defendants on October 23, 2001. Morton subsequently
appealed from the July 23, 2001 order, and after we vacated that order
on September 16, 2003, and remanded the case against Tenneco to the
district court, that court on September 14, 2004, dismissed the action
against Tenneco without prejudice. Then, on October 6, 2004,
Morton filed an appeal from the order of March 30, 1999, dismissing
the action against RML.1 RML has filed a motion to dismiss the
appeal for lack of appellate jurisdiction. We will grant RML’s motion
to dismiss because we lack jurisdiction over Morton’s premature
appeal.



            II. FACTS AND PROCEDURAL HISTORY

        In 1976, the New Jersey Department of Environmental
Protection (“DEP”) commenced an enforcement action in the
Superior Court of New Jersey against various entities as a result of
contamination in the Berry’s Creek area.2 The DEP was successful in
the action, and, on the ensuing appeal the Supreme Court of New


       1
        The other defendants have not participated in this appeal.
       2
         The extensive background to the Berry’s Creek litigation is not
directly germane to the basis on which we dispose of this appeal, and
thus we need not set it forth in full. For a comprehensive statement of
the underlying facts and background, see Morton Int’l, Inc. v. A.E.
Staley Mfg. Co., 343 F.3d 669 (3d Cir. 2003). See also Dep’t of Envtl.
Prot. v. Ventron Corp., 468 A.2d 150, 154-57 (N.J. 1983).

                                   5
Jersey in 1983 affirmed a Superior Court order requiring those
entities, including Morton, to remediate the contamination in the
Berry’s Creek area. See Dep’t of Envtl. Prot. v. Ventron Corp., 468
A.2d 150 (N.J. 1983). In 1996, Morton, which is the successor in
interest to Ventron Corporation, a defendant in the state case, filed
this action seeking contribution for its damages arising out of the
Ventron litigation from RML and numerous other defendants under
the Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq.; the Resource
Conservation and Recovery Act of 1976 (“RCRA”), Pub. L. No. 94-
580, 90 Stat. 2795 (1976), as amended 42 U.S.C. § 6901 et seq.; the
New Jersey Spill Compensation and Control Act, N.J. Stat. Ann. §
58:10-23.11 et seq. (West 1992); the Declaratory Judgment Act, 28
U.S.C. § 2201 et seq.; and the common law.3 RML, which formerly
was known as F.W. Berk & Co., Ltd. (“Berk U.K.”), was the British
parent corporation of the former F.W. Berk & Company, Inc. (“Berk
U.S.”). According to Morton, RML was liable for contribution based
on Berk U.S.’s operation of a manufacturing facility from 1929 to the
1950s “which . . . continued to result in the handling, storage,
treatment, transportation, disposal, and/or release of solid and/or
hazardous wastes . . . around the Berry’s Creek area.” J.A. at 102-
03.4

        On March 13, 1997, RML filed a motion in the district court
seeking to dismiss Morton’s contribution claim against it for lack of
personal jurisdiction. The parties engaged in discovery on the
jurisdictional issue following which, as we have indicated, on March
30, 1999, the court granted RML’s motion (“RML Dismissal
Order”).5 At that time Morton did not file a motion seeking an order

        3
         “J.A.” refers to the joint appendix submitted by counsel for
Morton. “RML Mot.” refers to RML’s motion to dismiss for lack of
appellate jurisdiction that RML submitted to this court on December 16,
2005. “Morton Opp’n” refers to Morton’s opposition to RML’s motion
to dismiss submitted to this court on January 5, 2006. “RML Reply”
refers to RML’s reply in further support of its motion to dismiss
submitted to this court on January 13, 2006.
        4
        Berk U.S. dissolved in 1960.
        5
         The order was dated and signed by the court on March 26, 1999,
but the stamp of its filing date indicates that it was not filed until March
29, 1999, and the docket sheet indicates that it was entered on March 30,
1999. These variations do not affect our analysis, and we hereinafter

                                     6
certifying the RML Dismissal Order as final and appealable pursuant
to Fed. R. Civ. P. 54(b) (“Rule 54(b)”), and it has not done so since.
As we also have indicated, on July 23, 2001, the district court entered
summary judgment in favor of defendant Tenneco and dismissed
Morton’s complaint as to Tenneco (“2001 Tenneco Order”). Then,
on October 23, 2001, the court entered the consent order dismissing
the action without prejudice as to the remaining defendants (“2001
Dismissal Order”).6 As of October 23, 2001, the court had dismissed
the action as to RML for lack of jurisdiction, granted Tenneco
summary judgment on the merits, and dismissed the action without
prejudice against the remaining defendants by consent. Thus, as there
were no remaining defendants, the court on October 25, 2001, marked
the case “closed” on the docket. Nevertheless on October 29, 2001, at
Morton’s request in a motion it filed before the entry of the 2001
Dismissal Order, the district court entered an order certifying the
2001 Tenneco Order as final and appealable pursuant to Rule 54(b).

        On November 27, 2001, Morton filed an appeal from the 2001
Tenneco Order (“Tenneco Appeal”). On September 16, 2003, we
vacated the 2001 Tenneco Order and remanded the case for further
proceedings. Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669
(3d Cir. 2003). On remand on September 14, 2004, the district court
entered a stipulation and agreed order of voluntary dismissal without
prejudice between Morton and Tenneco (“2004 Tenneco Order”).
The 2004 Tenneco Order was nearly identical to the 2001 Dismissal
Order.

        On October 6, 2004, Morton filed an appeal from the March
30, 1999 RML Dismissal Order. Plainly, Morton measured the time
for appeal from the 1999 RML Dismissal Order from the time of
entry of the 2004 Tenneco Order, for if it measured the time from the
entry of the RML Dismissal Order or from the entry of the 2001
Dismissal Order, the appeal would have been grossly untimely. See
Fed. R. App. P. 4(a)(1)(A). Thus, Morton implicitly regarded the
2004 Tenneco Order as the final order in this case.

       On December 16, 2005, RML filed its motion to dismiss for



will refer to the order as having been entered on the latest of the three
dates, March 30, 1999.
       6
        The dismissal order was filed on October 19, 2001, but was not
entered on the docket until October 23, 2001.

                                   7
lack of appellate jurisdiction.7 According to RML, Morton’s appeal is
premature inasmuch as the 1999 RML Dismissal Order was not final
when entered because other defendants then remained in the case, the
2001 Dismissal Order dismissing all of the then remaining defendants
without prejudice did not render the RML Dismissal Order final, and
the 2004 Tenneco Order did not render the RML Dismissal Order
final.8 Morton opposed the motion. The motions panel referred the
motion to a merits panel, and on June 7, 2006, we heard oral
argument on the appeal. We will dismiss the appeal as premature
notwithstanding the elapse of more than seven years since the entry of
the order from which Morton appeals.



                           III. DISCUSSION

        Ordinarily the proceedings in a district court must be final as
to the all causes of action and parties for a court of appeals to have
jurisdiction over an appeal under 28 U.S.C. § 1291.9 Andrews v.
United States, 373 U.S. 334, 340, 83 S.Ct. 1236, 1240 (1963);
Jackson v. Hart, 435 F.2d 1293, 1294 (3d Cir. 1970). The classic
definition of a “final decision” is one that “ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116
S.Ct. 1712, 1718 (1996) (quoting Catlin v. United States, 324 U.S.
229, 233, 65 S.Ct. 631, 633 (1945)). Thus, “an order which
terminates fewer than all claims, or claims against fewer than all

        7
         Prior to the filing of its motion to dismiss for lack of appellate
jurisdiction, RML filed a motion for summary action based on the
alleged lack of appellate jurisdiction. We denied without prejudice
RML’s motion for summary action to allow the parties to present the
jurisdictional issues to a merits panel.
        8
          RML alternatively argued that Morton’s appeal is “too late”
because “there was a decision in October 2001 that fully resolved all
claims presented in the district court . . . [and therefore] Morton’s appeal
is approximately three years too late.” RML Reply at 2. Of course,
inasmuch as we find that the appeal was too early, it cannot have been
too late.
        9
         The parties dispute whether we have appellate jurisdiction under
28 U.S.C. § 1291; Morton does not suggest that we have an alternative
basis to exercise jurisdiction, and we find none.

                                     8
parties, does not constitute a ‘final’ order for purposes of appeal
under 28 U.S.C. § 1291.” Carter v. City of Philadelphia, 181 F.3d
339, 343 (3d Cir. 1999).

        Accordingly, unless the district court directs the entry of a
final judgment as to that order pursuant to Fed. R. Civ. P. 54(b), an
order, such as the RML Dismissal Order, in which the district court
dismissed one defendant for want of personal jurisdiction but other
defendants remained, could not in itself be a final order for purposes
of appeal when the court entered it. See Special Invs., Inc. v. Aero
Air, Inc., 360 F.3d 989, 993 (9th Cir. 2004) (“An order dismissing
one party for lack of personal jurisdiction while allowing suit to
continue against the remaining defendants is not a final, appealable
order, absent an ‘express determination that there is no just reason for
delay and . . . an express direction for the entry of judgment.’”) (citing
Fed. R. Civ. P. 54(b); 28 U.S.C. § 1291); see also Pennzoil Prods. Co.
v. Colelli & Assocs., Inc., 149 F.3d 197, 200 (3d Cir. 1998) (district
court order dismissing some, but not all, defendants for lack of
personal jurisdiction not considered final and appealable although
appellate jurisdiction existed because district court granted permission
for an interlocutory appeal); Allen v. Okam Holdings, Inc., 116 F.3d
153, 154 (5th Cir. 1997) (dismissing appeal for lack of appellate
jurisdiction when district court dismissed one of two defendants for
lack of personal jurisdiction); Chapple v. Levinsky, 961 F.2d 372, 374
(2d Cir. 1992) (dismissal of three defendants for lack of personal
jurisdiction could not be appealed absent certification under Rule
54(b), because case remained pending against other defendant, even
though court transferred action as to that defendant to more
convenient venue). Therefore, the district court’s March 30, 1999
RML Dismissal Order dismissing RML as a defendant for want of
personal jurisdiction was not a final order for purposes of appeal
under 28 U.S.C. § 1291 when the court entered it inasmuch as other
defendants remained in the case and the court did not certify the order
as final under Rule 54(b).

         Furthermore, the court, by dismissing the remaining
defendants on October 23, 2001, after it entered the 2001 Tenneco
Order, did not render the March 30, 1999 RML Dismissal Order final.
The general rule that once all claims against all parties have been
dismissed a prior order will become final for purposes of appeal under
28 U.S.C. § 1291, see e.g., Ragan v. Tri-County Excavating, Inc., 62
F.3d 501, 505 (3d Cir. 1995), does not apply in this case because the
district court’s order entered on October 23, 2001, dismissed all
remaining defendants without prejudice and expressly contemplated

                                    9
that Morton could refile the action if the parties were unable to
resolve their dispute through a non-binding alternative resolution
process. Moreover, the 2001 Dismissal Order contained
comprehensive provisions tolling the running of any and all
applicable statutes of limitations, and Morton, in opposing RML’s
motion to dismiss this appeal, did not contend and never since has
contended that the tolling provisions are not still in effect. Thus,
Morton does not argue that it no longer can initiate litigation arising
out of the basic controversy in this case against the defendants
dismissed without prejudice in the 2001 Dismissal Order.

         The principle that, “[w]hen a District Court dismisses a case
pending settlement, and grants the Appellants leave to re-file within a
set period of time, the order cannot be considered final for the
purposes of appeal on the date it was entered,” Berke v. Bloch, 242
F.3d 131, 135 (3d Cir. 2001), governs this case. Only “if terms are
reached, and/or the plaintiff makes no attempt to re-open the
litigation, [will] the order ripen[] into a final, appealable order upon
the expiration of the fixed time period.” Id. Thus, “an order
dismissing a complaint without prejudice is not a final and appealable
order, unless the plaintiff no longer can amend the complaint because,
for example, the statute of limitations has run, or the plaintiff has
elected to stand on the complaint.” Newark Branch, N.A.A.C.P. v.
Town of Harrison, 907 F.2d 1408, 1416-17 (3d Cir. 1990) (internal
citations and footnotes omitted); see also Fed. Home Loan Mortgage
Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 438-40 (3d Cir. 2003)
(“Given the strong policy against piecemeal litigation that underlies
the finality requirement of § 1291, we have adhered consistently to
the general rule that we lack appellate jurisdiction over partial
adjudications when certain of the claims before the district court have
been dismissed without prejudice.”) (emphasis added) (citing Erie
County Retirees Ass’n v. County of Erie, 220 F.3d 193, 201 (3d Cir.
2000)); Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002) (a
dismissal without prejudice is considered final where the applicable
statute of limitations would not permit the refiling of a claim);
Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991) (order of
dismissal without prejudice not a final, appealable order unless and
until the party seeking relief disavows any intention to reinstitute the
litigation).

       The reason for the dismissal without prejudice exception to
the general rule that an order in a case is final for purposes of appeal
when the court has dismissed the case as to all claims and parties is
obvious, as the treatment of dismissals without prejudice as not being

                                   10
final “disallows the manipulative plaintiff from having his cake (the
ability to refile the claims voluntarily dismissed) and eating it too
(getting an early bite at reversing the claims dismissed
involuntarily).” Marshall v. Kansas City S. Ry. Co., 378 F.3d 495,
500 (5th Cir. 2004). On the other hand, the reason for the exception
to the exception to the rule that a case dismissed without prejudice is
not final is equally obvious. The exception to the exception is
appropriate because a case dismissed without prejudice that cannot be
reinstituted is in the same position as a case dismissed with prejudice
in that both classes of cases have reached finality.

        Several of our cases demonstrate the application of finality
rules when cases are dismissed without prejudice. In Tiernan, for
example, we pointed out that the plaintiffs initially retained the ability
to reinstitute part of the litigation following the dismissal without
prejudice of some, but not all, of the defendants. 923 F.2d at 1031.
We nonetheless determined that the order was final because,
“[s]everal months after th[e] appeal was filed, plaintiffs renounced,
through letter briefs, any intention to take further action against the
[defendants].” Id. In Blair v. Scott Specialty Gases, 283 F.3d 595,
602 (3d Cir. 2002), we similarly held that the district court’s order
dismissing the case without prejudice and directing the parties to
proceed with arbitration was final and appealable because “the
District Court did not retain jurisdiction over any of [the plaintiff’s]
claims as every claim was held to be arbitrable.” In other words,
there was “nothing left for [the plaintiff] to do but submit to
arbitration, and nothing left for the District Court to do other than
execute, modify, or vacate the ultimate arbitration award.” Id. at 601.

         Here, in its 2001 Dismissal Order dismissing the action as to
the defendants remaining without prejudice after Tenneco and RML
were out of the case, the district court expressly contemplated that
there could be “subsequent proceedings . . . in the event litigation is
resumed.” RML Mot., Ex. D at 2. The order also provided that “the
Parties may re-file claims against each other” if they are unable to
settle the dispute in “informal, non-binding alternative dispute
resolution procedures.” RML Mot., Ex. D at 4. In addition, the
district court specifically stated that the dismissal “shall not constitute
an adjudication on the merits.” RML Mot., Ex. D at 3. Unlike the
order in Blair directing the parties to arbitrate, which left nothing for
the court to do but to execute the judgment, the 2001 Dismissal Order
did not compel the parties to participate in binding arbitration. The
order merely afforded the parties the opportunity to participate in
non-binding alternative dispute resolution procedures and

                                    11
contemplated that there could be further litigation should the non-
judicial resolution process fail.

        Furthermore, unlike the plaintiffs in Tiernan, Morton has not
renounced its intention to take further action against the defendants.
See 923 F.2d at 1031. Quite to the contrary, at oral argument before
us Morton expressly declined to disavow any intention to take further
action against the Berry’s Creek defendants and stated that “at some
point in the future another action might be brought involving this
matter.” Thus, its position at oral argument reiterated what Morton
said when, in opposing RML’s motion to dismiss this appeal, it
acknowledged that “there might be a new action sometime in the
future based upon the same controversy.”10 Morton Opp’n at 7.

         We reject Morton’s contention that the 2001 Dismissal Order
is nonetheless final because, although “there might be a new action
sometime in the future based upon the same controversy,” Morton
Opp’n at 7 (emphasis added), “there is nothing in the dismissal orders
that will allow Morton to reinstitute the current action.” Morton
Opp’n at 7 (emphasis added) (citing Aluminum Co. of Am. v. Beazer
East, Inc. (ALCOA), 124 F.3d 551, 559 (3d Cir. 1997)). In this
regard, Morton relies on ALCOA, in which we stated that finality is
not lacking “even if another action regarding the same controversy
may occur before the same or another court,” ALCOA, 124 F.3d at
561, and when “there will not be [] any further proceedings in the
district court as part of the same action, the district court’s decision
must be considered final for purposes of § 1291.” Id. at 560.

       Although the quoted language in ALCOA distinguished
between further proceedings in the “same” action, 124 F.3d at 560,
and further proceedings in “another action,” id. at 561, ALCOA


       10
          Notably, Morton has had several opportunities to seek to have
the district court render the March 30, 1999 RML Dismissal Order final,
or to take steps itself to render the RML Dismissal Order final, but has
failed to do so. For example, Morton could have sought certification
from the district court pursuant to Rule 54(b) that the RML Dismissal
Order was final and appealable, but it has not done so. Alternatively,
Morton could have stipulated to a dismissal with prejudice as to the
remaining defendants. Finally, as we have indicated, Morton could have
disavowed any intention to take further action against the Berry’s Creek
defendants, but when we gave it the opportunity to do so at oral
argument, it rejected that invitation.

                                   12
involved “an unusual posture,” id. at 559, and the purported
distinction upon which Morton relies is inapposite to the facts of this
case. In ALCOA, the district court entered a consent order, which
stated that “any issues remaining after the liability trial, i.e., allocation
or apportionment of . . . damages, shall be referred to a private
binding mediation/arbitration process . . . .” Id. at 556. Following a
subsequent bench trial in which the district court found that certain of
the defendants were not liable, the cross-claimants took an appeal
from the order entered on the findings.

        We concluded that we had jurisdiction over the appeal despite
the fact that the consent order “le[ft] other issues relevant to the
controversy - and therefore, certain of the parties’ claims - still to be
resolved through a separate arbitration or mediation process[,]” id. at
559, because “every issue that was left unresolved [i.e., non-liability
issues] after trial [had] been removed from the [district] court and
referred to arbitration/mediation. The consent order guarantees that
there will be no further proceedings before the district court in this
action.” Id. We explained that the district court “accomplish[ed] all
that the parties asked the court to accomplish,” id. at 560, and
“subsequent judicial proceedings to enforce, confirm, or vacate an
arbitration award are regarded as distinct matters, and the possibility
of their occurrence does not deprive the district court’s order in the
original proceeding of its finality.” Id. at 561.

         After our review of the quoted language from ALCOA in its
proper context, we are satisfied that that case does not support a
conclusion that the without prejudice 2001 Dismissal Order in this
case is final. Here, Morton may refile its claims should the alternative
dispute resolution procedures fail as the dismissal order expressly
allows it to do so. Despite the district court’s characterization of such
a refiling as “subsequently-initiated litigation,” see RML Mot., Ex. D
at 4, the district court to date has not “accomplish[ed] all that the
parties asked the court to accomplish” merely by allowing the parties
to resolve their differences in a non-judicial setting. See ALCOA,
124 F.3d at 560. Therefore, any “subsequently-initiated litigation”
effectively will be part of the original action and controversy, albeit
with a new caption and docket number. Unlike the situation in
ALCOA, the subsequent action or actions will not be initiated solely
“to enforce, confirm, or vacate an arbitration award,” 124 F.3d at 561,
inasmuch as the 2001 Dismissal Order did not compel the parties to
arbitrate, or even contemplate that the parties would engage in
binding arbitration, but rather contemplated that if settlement efforts
failed that there might be further litigation regarding the original

                                     13
controversy.11 Consequently, there is potential for the district court to
revisit the case in the event that Morton refiles its claims against one
or more of the defendants, which may require the district court to
adjudicate its claim or claims on the merits. Therefore, the order of
dismissal of all remaining defendants on October 23, 2001, was not a
final order and thus did not render the 1999 RML Dismissal Order
final and appealable.12


       11
           We are satisfied that the 2001 Dismissal Order did not
contemplate the possibility that the parties would engage in a binding
alternative dispute resolution process because the order provided that
“the Parties shall participate in informal, non-binding alternative dispute
resolution procedures to explore opportunities for settling the matters in
controversy among the Parties.” RML Mot., Ex. D at 4. Thus, this case
differs from ALCOA, in which the dismissal of the district court action
was to be followed by “a private binding mediation/arbitration process.”
ALCOA, 124 F.3d at 556 (emphasis added). But even if the 2001
Dismissal Order had allowed the parties to engage in a binding
arbitration process, our result would have been the same inasmuch as
only a mandatory requirement that the parties engage in such a process
to resolve the substantive issues to the exclusion of other procedures
could have foreclosed the possibility that there would be future litigation
regarding the basic controversy. Of course, if a case is dismissed
without prejudice and the parties agree to engage in binding arbitration
at a later date, then the order of dismissal without prejudice will become
final at that time for purposes of appeal because the possibility of future
litigation regarding the basic controversy will be foreclosed.
       12
         We also note that the district court’s certification of the 2001
Tenneco Order as final and appealable under Rule 54(b) on October 29,
2001, did not lend finality to the previously entered RML Dismissal
Order, as the court did not certify the RML Dismissal Order as final
under Rule 54(b). A party in a case involving multiple defendants
seeking to appeal from the dismissal of one defendant may not appeal
from the dismissal order unless the trial court certifies the particular
order from which it seeks to appeal as final under Rule 54(b). See
Matthews v. Ashland Chem., Inc., 703 F.2d 921, 922 (5th Cir. 1983)
(judgment dismissing one claim against one defendant was not entered
under Rule 54(b) so appeal from that judgment “must be dismissed
without prejudice as premature” even though court certifies other
dismissals against other defendants as final). In Transit Mgmt. of
Southeast La., Inc. v. Group Ins. Admin., 226 F.3d 376, 382 (5th Cir.
2000), the Court of Appeals for the Fifth Circuit acknowledged that the

                                    14
        Our holding in LNC Invs. LLC v. Republic Nicaragua, 396
F.3d 342, 347 (3d Cir. 2005), further supports the principle that a
dismissal order that contemplates that there may be a future action
based on the same controversy does not constitute a final order for
purposes of appeal. In LNC Invs., we did not consider final “LNC’s
voluntary dismissal without prejudice of the pending garnishment
actions against [defendant’s former parent companies]” inasmuch as
the order did “not effectively bar a future garnishment action against
the parent companies arising from the [disputed agreement].” Id.
(emphasis added). Similarly, in Patten Sec. Corp. v. Diamond
Greyhound & Genetics, Inc., 819 F.2d 400, 403 (3d Cir. 1987), we
concluded that an order terminating the action “pending the result of
an arbitration proceeding” and allowing the matter to be “reinstated
upon motion by either party” was not final for purposes of section
1291.13 We explained that “[w]hile it is not clear what course the case
will take upon the completion of the pending arbitration, the order
clearly contemplates the possibility of further proceedings.” Id.
(emphasis added); see also Delgrosso v. Spang & Co., 903 F.2d 234,
236 (3d Cir. 1990) (An order that “permits reinstatement and
contemplates the possibility of future proceedings . . . is not final for
purposes of § 1291.”).14


district court expressly dismissed certain of the defendants and certified
the order as final under Rule 54(b). However, because the district court
“fail[ed] to explicitly include [the remaining dismissed] claims within
the Rule 54(b) final judgment,” the court of appeals dismissed the appeal
from the order dismissing the remaining claims, which the district court
had not certified under Rule 54(b). Id. Of course, entry of the 2004
Tenneco Order does not lend any finality to the case as that order, which
provided for a dismissal without prejudice, was not final in itself and the
court never certified it as final under Rule 54(b).
       13
         We held, however, that we had jurisdiction over the appeal by
reason of the applicability of what we described as the “metaphysical
Enelow-Ettelson doctrine,” 819 F.2d at 404, that the Supreme Court later
abrogated in Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 108 S.Ct. 1133 (1988).
       14
        The Delgrosso order resembled the 2001 Dismissal Order
inasmuch as it stated in part:

   Nothing contained in this order shall be considered a dismissal
   or disposition of this matter and, should further proceedings in
   it become necessary or desirable, either party may initiate it in

                                    15
         The approach to finality that we take here and took in LNC
Invs., Patten, Delgrosso and numerous other cases is consistent with
the approach of other courts of appeals. For example, the Court of
Appeals for the Second Circuit has held that “a dismissal without
prejudice [that] does not preclude another action on the same claims”
will not be considered final for purposes of appeal. Chappelle v.
Beacon Commc’ns Corp., 84 F.3d 652, 654 (2d Cir. 1996) (emphasis
added); see also Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.
2001) (plaintiff cannot appeal dismissal without prejudice if he is free
to refile his claims). In addition, Samco Global Arms, Inc. v. Arita,
395 F.3d 1212, 1213 n.2 (11th Cir. 2005), is consistent with the
exception to the rule of non-finality for appeal purposes of a dismissal
without prejudice that we recognized in Tiernan and Blair, as it
indicated that, “[a]lthough the district court order dismissed the case
‘without prejudice,’ it is clear that the order was nevertheless ‘final,’
as the district court found the defendants immune from all claims by
[the plaintiff] relating to the defendants’ actions, and closed the case
without granting the plaintiff permission to amend or refile.”

         Contrary to Morton’s assertion, the words “Case closed”
entered on the docket sheet on October 25, 2001, are not dispositive
on the question of whether the 2001 Dismissal Order and thus the
earlier RML Dismissal Order are final. An order reciting that no
further action is contemplated and directing the clerk to mark the case
closed does not become final for purposes of appellate jurisdiction
merely by reason of the execution of that order and its entry on the
docket.15 Delgrosso, 903 F.2d at 236. In Delgrosso, we explained
that “[t]he order [directing the clerk to mark the case closed] does not
purport to end litigation on the merits and the parties agree that it does
not determine any issues or resolve the entire case.” Id. The “Case
closed” entry on the docket sheet in this case similarly fails to
demonstrate that the orders entered were final for purposes of appeal.




   the same manner as if this order had not been entered.

903 F.2d at 236.
       15
          Of course, it will be final if the other bases for finality are
present, e.g., the court has dismissed the case with prejudice as to all
claims and all parties. But if those bases are present, the case will be
final for purposes of appeal even if the court has not marked the case
closed on the docket.

                                   16
         We also draw on our own experience in recognizing that a
district court does not render a matter final for purposes of appeal
merely by marking the docket in the case with the notation “Case
closed.” In fact, our experience teaches us that sometimes a district
court will mark a case closed when it could not possibly be final for
purposes of appeal. See Penn West Assocs., Inc. v. Cohen, 371 F.3d
118, 128 (3d Cir. 2004). We believe that there is not an inconsistency
in marking a case closed even though the court has not entered a final
order in the case for appeal purposes as district courts mark cases
closed for unassailable administrative reasons when they contemplate
that there will not be further proceedings in them. For example, as
happened here, it is appropriate for a district court to mark the docket
as “case closed” even though the court dismissed the action without
prejudice and there was no impediment to a party seeking to reinstate
the case. In this regard, we point out that it is entirely reasonable for
a court to mark such a case as closed though the court has not entered
a final order in the case for appeal purposes because frequently the
parties do not reinstitute cases dismissed without prejudice.

         In sum, the 2001 Dismissal Order dismissing all remaining
defendants on October 23, 2001, was not a final order and thus did
not lend finality to the March 30, 1999 RML Dismissal Order. The
2001 Dismissal Order dismissing the remaining defendants without
prejudice did not purport to end the litigation on the merits and
specifically contemplated that there could be subsequent proceedings
in which the litigation over the controversy would resume.
Accordingly, the 2001 Dismissal Order fails to satisfy the traditional
requirement for a judgment to be final and therefore cannot lend
finality to the earlier order dismissing RML. See Quackenbush, 517
U.S. at 712, 116 S. Ct. at 1718. The same is true with respect to the
2004 Tenneco Order, the entry of which Morton regards as triggering
its right to appeal from the RML Dismissal Order, as it does not
preclude further litigation against any of the defendants in this case.

        Finally, we should not close our opinion without commenting
on an inconsistency in Morton’s position. Morton’s argument that its
appeal is not “too early” is predicated on the premise that the district
court disposed of the case against the last remaining defendant when
it entered the 2004 Tenneco Order dismissing the action without
prejudice as to Tenneco. However, if we accept this proposition,
Morton’s appeal of the RML Dismissal Order is too late inasmuch as
the district court dismissed the remaining defendants in the 2001
Dismissal Order after it granted Tenneco summary judgment in the
2001 Tenneco Order, but Morton’s appeal would be untimely if

                                   17
measured from either of those orders. The point we make is
necessarily true because both the 2001 Dismissal Order and the 2004
Tenneco Order dismissed the defendant or defendants remaining at
that time without prejudice. Thus, if the 2004 Tenneco Order was
final for purposes of an appeal then the 2001 Dismissal Order was
similarly final because at that point there were no remaining
defendants in the case.

        In explaining that its appeal “is not too late,” Morton claims
that the orders entered in 2001 were not final because this court
subsequently entertained Morton’s appeal as to the 2001 Tenneco
Order and remanded the case against Tenneco for further proceedings.
Morton Opp’n at 4. According to Morton, “[a]ll claims against all
parties were not effectively disposed of since this Court remanded for
further proceedings the claims against Tenneco.” Morton Opp’n at 4.

        This argument plainly is flawed inasmuch as neither the filing
of nor the disposition of the Tenneco appeal would have altered the
period during which Morton timely could have appealed from the
RML Dismissal Order, if Morton could have filed such an appeal
prior to the proceedings on the Tenneco Appeal. Moreover, the
Tenneco Appeal did not affect or alter the finality or lack of finality
of the previously entered RML Dismissal Order and the 2001
Dismissal Order. This principle is demonstrated by our opinion in
New Castle County v. Hartford Accident & Indem. Co., 933 F.2d
1162, 1180 (3d Cir. 1991), in which we indicated that “we know of no
case that says that an order that is ‘final’ when an appeal is taken can
be rendered non-final by a later decision of the appellate court.” Any
other rule would invite judicial chaos as it would mean that after a
court of appeals adjudicated an appeal, at least if its disposition
remanded the case as it did on the Tenneco Appeal, a party would be
able to appeal from an order entered prior to entry of the order from
which the appellant initially had appealed. Thus, if we accepted
Morton’s argument with respect to the effect of the Tenneco Appeal
and the subsequent entry of the 2004 Tenneco Order, we would be
permitting parties to take serial appeals from orders entered prior to
entry of the final order permitting the original appeal. We certainly
will not do that.

        Accordingly, inasmuch as the finality of an underlying order is
not affected or altered by a later appeal, the appeal and even a
reversal or vacation of an order that a district court has entered does
not reactivate the period during which a party may appeal from orders
from which it has not appealed already. Therefore, if Morton could

                                  18
have appealed from the RML Dismissal Order after we vacated the
2001 Tenneco Order on September 16, 2003, and the district court
entered the 2004 Tenneco Order, on the theory that the RML
Dismissal Order became final when the district court entered the 2004
Tenneco Order, it necessarily follows that the RML Dismissal Order
had to have been final years earlier which it was not. Thus, Morton is
caught in a trap of its own making because if we accept its argument
that its appeal is not premature then we must hold that it is too late.



                         IV. CONCLUSION

          For the foregoing reasons, we will grant RML’s motion to
dismiss this appeal for lack of subject-matter jurisdiction.




                                  19
