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Borelli v. City of Reading

United States Court of Appeals, Third Circuit
Mar 31, 1976
532 F.2d 950 (3d Cir. 1976)

Summary

holding that an order dismissing a complaint without prejudice ordinarily is neither final nor appealable

Summary of this case from Royal v. Kta-Tator

Opinion

No. 75-1789.

Argued February 3, 1976.

Decided March 31, 1976.

William R. Mosolino, Orwigsburg, Pa., for appellant.

Robert T. Miller, Charles H. Weidner, Stevens Lee, Reading, Pa., for appellees, City of Reading and Redevelopment Authority of the City of Reading.

Carl Strass, Robert A. Kerry, Dept. of Justice, Washington, D. C., Walter Kiechel, Jr., Acting Asst. Atty. Gen., Washington, D. C., Robert E. J. Curran, U.S. Atty., Philadelphia, Pa., William J. McGettigan, Asst. U.S. Atty., Philadelphia, Pa., for appellee, Dept. of H.U.D.

Appeal from the United States District Court for the Eastern District of Pennsylvania.

Before SEITZ, Chief Judge, and VAN DUSEN and WEIS, Circuit Judges.


OPINION OF THE COURT


Settled policy in the federal courts discourages piecemeal appeals and, so, generally recourse may be had to appellate tribunals only when final orders are the subject of review. While the inevitable exceptions exist, none are applicable to the appellant here. Accordingly, we must dismiss this appeal from orders dismissing the complaint without prejudice and denying plaintiff's motion for summary judgment.

With the aid of funds supplied by the Commonwealth of Pennsylvania and the United States Department of Housing and Urban Development, the Redevelopment Authority of Reading began work on a project to rehabilitate part of the downtown area. The plaintiff, who owns her home in the redevelopment area, opposed the proposed changes in her neighborhood and filed suit in the district court. She asked for injunctive and declaratory relief, contending that H.U.D. failed to comply with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. After the parties had served and answered interrogatories, both sides moved for summary judgment. The district court ruled that the defendants' motion insofar as "they allege plaintiff's lack of standing is granted and the complaint will be dismissed without prejudice." Plaintiff's motion was denied. The plaintiff did not file an amendment to her complaint but instead took this appeal from both adjudications.

The defendants' motion for summary judgment in substance alleged that they had conformed to the applicable legal requirements, that plaintiff was bound by reason of res judicata because of a ruling in a suit filed in the state court, and that she lacked standing to sue. The district court passed only upon the last contention, noting that in her complaint plaintiff did not assert "injury in fact" within the scope of N.E.P.A., nor did she allege irreparable injury in requesting injunctive relief.

The question of standing is generally determined from the face of the complaint, Schiaffo v. Helstoski, 492 F.2d 413 (3d Cir. 1974). If the averments are not sufficient, the trial court may require the plaintiff to supply further particularized allegations of fact by amendment to the complaint or by affidavits. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Although the district court's order did not mention amendment, an implicit invitation to amplify the complaint is found in the phrase "without prejudice."

Since it may be difficult to determine whether the district court thought an amendment was possible and whether the plaintiff is willing or able to amend, we suggest that district judges expressly state, where appropriate, that the plaintiff has leave to amend within a specified period of time, and that application for dismissal of the action may be made if a timely amendment is not forthcoming within that time. If the plaintiff does not desire to amend, he may file an appropriate notice with the district court asserting his intent to stand on the complaint, at which time an order to dismiss the action would be appropriate.

Generally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action. Only if the plaintiff cannot amend or declares his intention to stand on his complaint does the order become final and appealable. Azar v. Conley, 480 F.2d 220 (6th Cir. 1973); Grantham v. McGraw-Edison Co., 444 F.2d 210 (7th Cir. 1971); Hurst v. California, 451 F.2d 350 (9th Cir. 1971).

Here, the plaintiff took no action in response to the district court's order other than to file a notice of appeal. She has not taken the position that she must stand on the original complaint because it cannot be amended. Indeed, during oral argument in this court, the possibility of an amendment alleging increased air pollution was discussed. What other factual averments plaintiff might be able to include in her complaint we need not consider at this juncture. That is more properly a matter for her and counsel to ponder. We need go no further than to note that we are not confronted with a situation where it is not possible to amend the complaint in any relevant respect. The dismissal of the complaint without prejudice is not a final order on the facts presented by this record and, accordingly, is not appealable.

It appears that one feature of the redevelopment project is the enlargement of a tannery in the community. If the expansion of this industry would intensify the discharge of foreign substances into the air, the environmental quality of life in the plaintiff's neighborhood would be affected. To this extent, the plaintiff would have an interest in Authority action which failed to consider the possibility of increased air pollution.

Having found that the plaintiff lacked standing, the district court should not have passed upon her motion for summary judgment. That being so, we do not discuss it here.

The appeal will be dismissed.


Summaries of

Borelli v. City of Reading

United States Court of Appeals, Third Circuit
Mar 31, 1976
532 F.2d 950 (3d Cir. 1976)

holding that an order dismissing a complaint without prejudice ordinarily is neither final nor appealable

Summary of this case from Royal v. Kta-Tator

holding that "an implicit invitation to amplify the complaint is found in the phrase ‘without prejudice’ "

Summary of this case from DIA Brewing Co. v. MCE-DIA, LLC

recognizing that "[g]enerally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action. Only if the plaintiff cannot amend or declares his intention to stand on his complaint does the order become final and appealable."

Summary of this case from Surgick v. Acquanetta Cirella

explaining that an order becomes final and appealable if a plaintiff stands on his complaint or cannot amend

Summary of this case from Robinson v. Bureau of Health Care Servs.

explaining that a dismissal without prejudice is not a "final" order if "the deficiency may be corrected by the plaintiff without affecting the cause of action"

Summary of this case from Woodell v. Wetzel

explaining that a dismissal without prejudice is generally not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the defects in his complaint

Summary of this case from Duglas v. Hoang

noting that "[t]he question of standing is generally determined from the face of the complaint"

Summary of this case from Pennell v. Glob. Tr. Mgmt.

In Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976), the district court had dismissed plaintiff's complaint without prejudice, and rather than seeking to amend, plaintiff filed a notice of appeal.

Summary of this case from Estate of Fabics v. City of New Brunswick

explaining that an order of dismissal must be with prejudice to be final and that an order dismissing with leave to amend is interlocutory unless a plaintiff elects to stand on the complaint

Summary of this case from Thomas v. Chase Bank and Affilates

noting that a without prejudice dismissal may be final if the plaintiff stands on his complaint

Summary of this case from Washington v. Grace

In Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976), we recommended a procedure for district courts to follow when dismissing complaints without prejudice and suggested that "district judges expressly state, where appropriate, that the plaintiff has leave to amend within a specified period of time, and that application for dismissal of the action may be made if timely amendment is not forthcoming within that time.

Summary of this case from Bryan v. E.C.O.C.Y.S

In Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) (per curiam), this court, noting the general rule that an order dismissing a complaint without prejudice is not appealable, stated that "[o]nly if the plaintiff cannot amend or declares his intention to stand on his complaint does the order become final and appealable."

Summary of this case from Remick v. Manfredy

In Borelli, we recognized that an exception to this jurisdictional rule exists if the plaintiff either cannot cure the defect that led to dismissal or elects to stand on the dismissed complaint.

Summary of this case from Deutsch v. U.S.

In Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam), we held that "[g]enerally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action.

Summary of this case from Martin v. Brown

In Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976), we held that the district court's order dismissing the plaintiff's complaint without prejudice was not appealable.

Summary of this case from Garber v. Lego

In Borelli, we recognized an exception to this rule when the plaintiff can not amend its complaint or declares its intention to stand on the complaint.

Summary of this case from Garber v. Lego

In Borelli, the district court dismissed the complaint without prejudice because the plaintiff had failed to establish standing.

Summary of this case from Fassett v. Delta Kappa Epsilon

In Borelli v. City of Reading, 532 F.2d 950, 952 (3d Cir. 1976), we stated that although an order of dismissal without prejudice is ordinarily not appealable, "if the plaintiff cannot amend or declares his intention to stand on his complaint... the order become[s] final and appealable."

Summary of this case from Shirey v. Bensalem Township

In Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976) the court held a district court's dismissal "without prejudice" amounted to an implicit invitation to the plaintiff to amend the complaint.

Summary of this case from Elfenbein v. Gulf Western Industries, Inc.

In Borelli v. City of Reading, 532 F.2d 950 (3d Cir. 1976), we held that an order of dismissal without prejudice is appealable only if the plaintiff cannot amend his complaint or declares his intent to stand on it. The requirement of finality is given a practical, rather than a technical construction.

Summary of this case from Hall v. Pennsylvania State Police

stating that "an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action. Only if the plaintiff cannot amend or declares his intention to stand on his complaint does the order become final and appealable"

Summary of this case from Nikolin v. Samsung Electronics America, Inc.

explaining that an order dismissing a complaint without prejudice is neither final nor appealable, unless the plaintiff cannot amend or declares her intention to stand on the complaint

Summary of this case from TISH v. MAGEE-WOMEN'S HOSP. OF UNIV. OF PITT. MED. CT

stating that order dismissing complaint without prejudice is final if plaintiff declares his intent not to amend

Summary of this case from Standage v. White Mountain Vacation Vill. Subdivision Ass'n
Case details for

Borelli v. City of Reading

Case Details

Full title:MRS. CARMELLA M. BORELLI, APPELLANT, v. CITY OF READING ET AL., APPELLEES

Court:United States Court of Appeals, Third Circuit

Date published: Mar 31, 1976

Citations

532 F.2d 950 (3d Cir. 1976)

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