2006 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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
2

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
3

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)
4

 

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
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

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
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

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
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

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
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

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
9

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
10

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
11

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
10Notably, 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

contemplated that there could be further litigation should the nonjudicial 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
13

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
11We 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.

12We 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

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
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).

13We 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). 

14The 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

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

903 F.2d at 236.

15Of 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

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. 
17

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
18

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
19

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.