                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2005

Kuri v. Bergen
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2632




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                                   NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


     Nos. 04-2632 and 04-2633


 GRACE SUSAN KURI, individually;
 GRACE SUSAN KURI, as Guardian
    Ad Litem for O.F.., a minor

                v.

BERGEN COUNTY; BERGEN COUNTY
     PROSECUTOR'S OFFICE;
    BOROUGH OF MAYWOOD;
   ADRIAN CALES, individually;
    JOSEPH SACCO, individually
   JOHN DOES 1-20, individually

             Adrian Cales,
             Appellant Case No. 04-2632


 GRACE SUSAN KURI, individually;
 GRACE SUSAN KURI, as Guardian
    Ad Litem for O.F., a minor

                v.

BERGEN COUNTY; BERGEN COUNTY
      PROSECUTOR'S OFFICE;
    BOROUGH OF MAYWOOD;
   ADRIAN CALES, individually;
    JOSEPH SACCO, individually;
   JOHN DOES 1-20, individually

  Borough of Maywood and Joseph Sacco,
                Appellants Case No. 04-2633
                    Appeals from the United States District Court
                            for the District of New Jersey
                            (D.C. Civil No. 01-cv-03076)
                     District Judge: Honorable Jose L. Linares


                               Argued March 9, 2005

            Before: NYGAARD, McKEE and RENDELL, Circuit Judges.

                               (Filed: April 28, 2005)


John C. Whipple
Mary Gibbons Whipple [ARGUED]
264 South Street
Morristown, NJ 07960
  Counsel for Appellant Adrian Cales

David L. Epstein [ARGUED]
Post, Polak, Goodsell,
MacNeill & Strauchler
425 Eagle Rock Avenue, Suite 200
Roseland, NJ 07068
  Counsel for Appellee Grace Susan Kuri

Peter A.Scandariato
Eastwood, Scandariato & Steinberg
723 Kennedy Boulevard
North Bergen, NJ 07047
  Counsel for Appellees Borough of Maywood and
  Joseph Sacco




                            OPINION OF THE COURT




                                          2
RENDELL, Circuit Judge.

       Appellee O.F. brought suit under 42 U.S.C. § 1983 claiming that Appellants,

Detective Sergeant Joseph Sacco and Sergeant Adrian Cales, violated his constitutional

rights during their interrogation of him in the course of investigating a fire that destroyed

a business. The District Court rejected Appellants’ qualified immunity defense and

granted partial summary judgment to Appellee on liability; the District Court did not

assess damages. Appellants did not directly appeal the judgment as to either the rejection

of qualified immunity or the grant of summary judgment to Appellee, but instead filed

motions under Fed. R. Civ. P. 60(b)(6) for relief from the judgment based on a

subsequent clarification of the applicable law. The District Court denied these motions

on the merits and this appeal followed. Because we conclude that we lack jurisdiction,

we will dismiss the appeals.

                                              I.

       Because we write solely for the parties, and the facts are known to them, we will

discuss only those facts pertinent to this appeal. As a thirteen-year-old juvenile, Appellee

was questioned by Appellants in connection with the investigation of a fire that burnt

down a store in Lodi, New Jersey. Appellee’s mother was present in the building where

the questioning was taking place, but Appellants convinced her to remain outside the

interrogation room. Appellee was not advised of his Miranda rights prior to making his

initial inculpatory statements. He was later asked to summarize his admissions in his



                                              3
mother’s presence, which he did, and only after reiterating his admissions were he and his

mother given Miranda warnings. At Appellee’s criminal trial, the Court did not suppress

the confession and Appellee was adjudicated delinquent for acts which if committed by

an adult would be, inter alia, third-degree arson. On appeal, after concluding that

Appellee’s Miranda rights were violated and the confession was not voluntary, the New

Jersey Superior Court reversed the adjudication as to all charges, with the exception of an

assault charge, and remanded. On remand, the charges were dismissed as there was not

enough evidence to convict without the confession.

       Subsequently, Appellee, along with his mother, brought the present § 1983 action.

In an October 6, 2003 opinion and order, the District Court: (1) granted summary

judgment to Appellants as to all claims brought by Appellee’s mother because all such

claims were time-barred; (2) rejected Appellants’ qualified immunity defense and granted

summary judgment to Appellee on liability regarding violations of Appellee’s

constitutional rights under the Fifth and Fourteenth Amendments and with respect to

whether a false arrest occurred; and (3) granted summary judgment to Appellants on

Appellee’s claims of violations of substantive due process, the right to travel, First and

Fourteenth Amendment companionship rights, Monell liability, malicious prosecution,

and negligent supervision. The Court did not assess damages.

       Appellants then filed D.N.J. Local Rule 7.1(g) motions for reconsideration of the

ruling regarding the false arrest and Fed. R. Civ. P. 60(b)(6) motions for relief from the



                                              4
Oct. 6, 2003 order in light of a clarification of law, namely, the issuance of Renda v.

King, 347 F.3d 550 (3d Cir. 2003) (interpreting Chavez v. Martinez, 538 U.S. 760

(2003)), wherein we held that a plaintiff may not base a § 1983 action on failure to give

Miranda warnings where no incriminating statements obtained were used against the

plaintiff in a criminal trial. In a May 11, 2004 opinion and order, the District Court

granted Appellants’ motions for reconsideration of the false arrest ruling and Appellants’

motions for summary judgment on the false arrest claim, but denied Appellants’ Rule

60(b) motions. The present appeal of that order followed.

                                              II.

       Our analysis of this matter begins with the premise that “where liability has been

decided but the extent of damage remains undetermined, there is no final order [for

purposes of appellate jurisdiction].” Sun Shipbuilding & Dry Dock Co. v. Benefits Rev.

Bd., United States Dep’t of Labor, 535 F.2d 758, 760 (3d Cir. 1976). Here, because the

District Court has not assessed damages, we are not presented with an appeal from a

“final decision” of the District Court and, consequently, we lack jurisdiction under the

ordinary application of 28 U.S.C. § 1291.

       This does not end our inquiry, however, because notwithstanding the absence of

damages, under the collateral order doctrine, a decision of the District Court, though not

final, may be immediately appealed if it falls in a “small class which finally determine

claims of right separable from, and collateral to, rights asserted in the action, too



                                               5
important to be denied review and too independent of the cause itself to require that

appellate consideration be deferred until the whole case is adjudicated.” Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (noting that “[t]he Court has long

given this provision of [28 U.S.C. § 1291] this practical rather than a technical

construction”). Indeed, the denial of qualified immunity is one such decision to which the

collateral order doctrine applies. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (“[A]

district court’s denial of a claim of qualified immunity, to the extent that it turns on an

issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.”). Furthermore, within the same

proceeding, the denial of qualified immunity may be appealed at both the dismissal stage

and, if unsuccessful, at the summary judgment stage, “[s]ince an unsuccessful appeal

from a denial of dismissal cannot possibly render the later denial of a motion for summary

judgment any less ‘final.’” Behrens v. Pelletier, 516 U.S. 299, 307 (1996). Here,

Appellants argue that to the extent their appeal relates to the District Court’s rejection of

their qualified immunity defense, we have appellate jurisdiction under the collateral order

doctrine. We disagree.

       One fundamental problem with this position is that Appellants did not timely

appeal the District Court’s rejection of their qualified immunity defense. The District

Court denied qualified immunity, and granted partial summary judgment to Appellee, in

its October 6, 2003 order. Appellants did not appeal that order, timely or otherwise.



                                               6
Rather, they sought relief of the District Court’s judgment by filing Rule 60(b) motions

with the District Court.1

       A second problem is that by its express terms, Rule 60(b) applies only to “final

judgments, orders, or proceedings.” Fed. R. Civ. P. 60(b) (“On motion and upon such

terms as are just, the court may relieve a party or a party’s legal representative from a

final judgment, order, or proceeding for the following reasons . . . ”) (emphasis added);

see also Penn W. Assocs. v. Cohen, 371 F.3d 118, 125 (3d Cir. 2004) (quoting Torres v.

Chater, 125 F.3d 166, 168 (3d Cir. 1997)). Although it is not necessarily given that a

“final judgment, order, or proceeding” under Rule 60(b) is the same as a “final decision”

under 28 U.S.C. § 1291, “[a] moment’s thought shows why Rule 60(b) must be limited to

review of orders that are independently ‘final decisions’ under 28 U.S.C. § 1291. A party

should not get immediate review of an order for discovery, or one denying summary

judgment and setting the case for trial, just by filing a Rule 60(b) motion to set aside the

order and then appealing the denial of this motion.” Kapco Mfg. Co. v. C & O Enters.,

Inc., 773 F.2d 151, 154 (7th Cir. 1985). Furthermore, as the Seventh Circuit also pointed


 1
  Though not directly at issue, we note that the Rule 60(b) motions here did not toll the
period for appealing the October 6 order. Under Fed. R. App. P. 4(a)(4)(A)(vi), “the time
to file an appeal runs for all parties from the entry of the order disposing of . . . [a motion]
for relief under [Fed. R. Civ. P.] 60 if the motion is filed no later than 10 days after the
judgment is entered.” See Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 161
(3d Cir. 2004) (noting that 10-day rule of Fed. R. App. P. 4(a)(4)(A) provides the “limited
circumstances under which an appeal from a Fed. R. Civ. P. 60(b) motion may address
the underlying judgment”). Here, because neither Rule 60(b) motion was filed within 10
days of the judgment, the period for appealing the October 6 order was not tolled.

                                               7
out in Kapco, “[t]he Advisory Committee’s notes say that the Rule was devised to give

the district court a power of revisitation it had lacked. A court always had the power to

modify earlier orders in a pending case. Therefore ‘final’ in Rule 60(b) must modify

‘order, or proceeding’ as well as ‘judgment.’ Otherwise the Rule creates a power of

modification redundant with the ordinary power to conduct pending proceedings and

rethink earlier orders.” Id. It stands to reason, then, that if an order granting partial

summary judgment on liability but not assessing damages is not a final order for purposes

of appellate jurisdiction, see Sun Shipbuilding, 535 F.2d at 760, and such a final order is

required for a Rule 60(b) motion, see Kapco, 773 F.2d at 154, the District Court here

should have dismissed Appellants’ motions rather than deny them on the merits.

       Given this analysis, the only theory that could save Appellants’ appeal to this

Court is to give the “final judgment, order, or proceeding” requirement of Rule 60(b) the

same “practical rather than technical” construction the “final decision” requirement of 28

U.S.C. § 1291 is given under the collateral order doctrine to justify the District Court’s

denial of Appellants’ Rule 60(b) motions on the merits. Despite the similar construction

these finality requirements have been given in, for example, Kapco, such a theory is

without precedent and, hence, we decline to adopt it here.

       We choose this path because, as it turns out, our ultimate determination does not

require it. Assuming arguendo that we were to read the finality requirement of Rule 60(b)

as we do 28 U.S.C. § 1291 under the collateral order doctrine and thus find the District



                                               8
Court’s denial of the motions on the merits was procedurally proper, the appeal of the

Court’s denial of the motions would “raise[] for review only the order of denial itself and

not the underlying judgment.” Pagan v. Am. Airlines, Inc., 534 F.2d 990, 992-93 (1st

Cir. 1976) (citations omitted). In other words, “Rule 60(b) cannot be used as a substitute

for an appeal.” Id. Consequently, because the rejection of qualified immunity here was

the “underlying judgment,” we would be without jurisdiction to review it, and our review

would be confined to a determination of whether the denial of the motions itself was an

abuse of discretion. See Page v. Schweiker, 786 F.2d 150, 152 (3d Cir. 1986). Because

Appellants have not challenged the reasoning and alternative grounds the District Court

provided in the denial of the motions, choosing, rather, to expend the sum of their efforts

disputing the rejection of qualified immunity, the denial of the motions itself has not been

appealed and, therefore, we would lack jurisdiction to review it.

       As a final consideration, we note that insofar as Behrens held that a defendant may

appeal the rejection of qualified immunity both at the dismissal and summary judgment

stage, we find it inapplicable here as Appellants failed to file a timely appeal from either

the rejection of qualified immunity or the summary judgment order and the Rule 60(b)

motions did not operate to extend the appeal period. See supra note 1.

                                             III.

       For the foregoing reasons, we will dismiss the appeals for lack of appellate

jurisdiction.



                                              9
