(dissenting).
If I were a lawyer interested in (a) a timely appeal but (b) not imposing unnecessary labor on overworked appellate courts, I would be confused.
A complaint followed by an answer and an impleader of a third party defendant is either a multiple claim under F.R.Civ. P. 54(b) or it is a single cause of action involving multiple parties. If it is the first, then Rule 54(b) expressly applies. A determination has to be made that “there is no just reason for delay” otherwise it is “subject to revision at any time before the entry of judgment adjudicating all the claims.”
If, on the other hand, as the court’s opinion seems to imply there was but “one cause of action” with a party and conditional parties, our prior decisions require that the whole thing await the final action as to all. Nettles v. General Accident Fire & Life Assur. Corp., 5 Cir., *4061956, 234 F.2d 243, with which I did not agree but which now binds me, was almost simultaneous with Meadows v. Greyhound Corp., 5 Cir., 1956, 235 F.2d 233. In the Meadows case the Court set forth that if it is but a single cause of action involving multiple parties, it is not a multiple claim. So much is that so that a certification under 54(b) is completely ineffectual.
Now we come up with something in between. It is not a single cause of action a la Meadows “involving” maybe-multiple parties depending on some judicial action somewhere down the line.
What does the lawyer do? He must appeal from every possible order — even those that name but some of the parties. When he does so, the whole ease stops— but not the judicial machine. Its wheels spin merrily along. The District Clerk’s office is diverted for preparation of the appellate record. It is lodged with the Court of Appeals. Then comes the motion to dismiss. We have many of these every year. E. g., Jewell v. Grain Dealers Mutual Ins. Co., 5 Cir., 1959, 273 F.2d 422. Sustained as the motion must be, the case goes back for the “first” trial and a second appeal. A year has generally run out and the statistics reflect the added work.
Conscientious lawyers deplore this. But it is not of their making. And we must acknowledge that a prudent advocate will not run the risk of outguessing the Court of Appeals on when a many-partied-case is a multiple claim or merely a multiple-party-single-claim affair.
To his quandry we now add a new wrinkle. Appealability depends on the legal consequences of a ruling concerning the rights of others as it bears on other parties to the litigation even though they are not named or referred to in the order. Here the Court reasons that since dismissal of Arrow made the third party claim an academic one, the order dismissing Arrow only dismissed Zurich as well.
But,just how does one determine this? For example, a complaint in a diversity suit against a servant and his corporate employer as principal carefully restricts allegations of negligence to acts of the servant only so that the corporation’s liability is derivative only. The Court, say, on summary judgment, dismisses the case as to the servant. The legal consequence of that ruling is that the corporate principal has no liability. See, Seaboard Air Line R. Co. v. George F. McCourt Trucking, 5 Cir., 1960, 277 F.2d 593. But the case is still on the docket and the corporation appears as a defendant. Was that corporate defendant dismissed though not named? Was the whole case adjudicated? Under the Meadows-Nettles concept it would be a multi-party single cause of action and all would have to await the final gong. But now the parties have to figure out what neither the judge by formal order nor the Clerk by docket entry have revealed in any way.
The legal consequences of a judge’s, previous holding on the ultimate disposition of the case as to other parties should have no more effect on the parties not. specified in the order than would, for example, an intervening authoritative ruling of the appropriate appellate court on a controlling substantive issue.
Sound judicial administration — an element certainly worthy of note as judges, construe judge-made rules — ought carefully to distinguish between a judicial action and its legal consequences.
On all tests there were clearly two-“claims” here- — the plaintiff’s case-against Arrow and Arrow’s case for indemnity. There may well have been nothing left to the merits of the third, party claim but until it was disposed of, it was still pending and an appeal could, not be taken from the order of dismissal. Indeed, while it is the sort of question-begging problem the law deals with all the time, with the third party complaint, undisposed of the order on the main claim, was still in the bosom of the Court. As-the Rule states, it was “subject to revision at any time.”
I think that where there is a reasonable basis for choice, constructions of' *407this kind are contrary to the purpose of the Federal Rules of Civil Procedure. Since courts seem to have difficulty in undoing confusion engendered by the decisional process and at other times seem unable to resist making matters worse, I look with much confidence on the continuing study of the Rules under the direction of the Judicial Conference, 28 U.S.C.A. § 331. Judge Maris with his strong supporting committees of distinguished judges and lawyers and scholars will, I hope, marshal the full competence of the bar on pre-old and amended Rule 54(b) so that, for a third time, lawyers will lead us out of the wilderness.
I dissent.