August 18, 2006
MORTON INTERNATIONAL, INC.; VELSICOL CHEMICAL CORPORATION; NWI LAND MANAGEMENT CO.; FRUIT OF THE LOOM, INCORPORATED
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 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.
The opinion of the court was delivered by: Greenberg, Circuit Judge
BEFORE: AMBRO, FUENTES, and GREENBERG, Circuit Judges
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.*fn1 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.*fn2 The DEP was successful in the action, and, on the ensuing appeal the Supreme Court of New 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.*fn3 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.*fn4
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").*fn5 At that time Morton did not file a motion seeking an order 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").*fn6 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 lack of appellate jurisdiction.*fn7 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.*fn8 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 ...
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