Summary
holding that a caption styled "Gregory Milonovich, et ux. " satisfied Appellate Rule 3(c) because "et ux. " was more specific than "et al. " and the notice of appeal referred to the husband and wife as "plaintiffs" in the plural
Summary of this case from Hawkins v. Wash. Metro. Area Transit Auth.Opinion
No. 90-7155.
Decided July 12, 1991.
Allen Hutter, Washington, D.C., was on the motion to dismiss for appellants.
Mitchell Stabbe, Washington, D.C., Daniel S. Pearson and George Mencio, Jr., Miami, Fla., were on the opposition to the motion to dismiss, for appellees.
Appeal from the United States District Court for the District of Columbia (Civil Action Number 89-00866).
Before WALD, SILBERMAN and WILLIAMS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
On Motion to Dismiss
Gregory and Marjorie Milanovich filed a personal injury action in district court against Costa Crociere, S.p.A., and Costa Cruises, Inc. The district court 747 F.Supp. 1, granted defendants' motion for summary judgment and the plaintiffs appealed. The notice of appeal was captioned "Gregory Milanovich, et ux.," and stated that "Plaintiffs hereby appeal the judgment of the court below." Nowhere in the notice was Marjorie Koch-Milanovich, Gregory Milanovich's wife, specifically identified by name as an appellant. Defendants/appellees have moved to dismiss the appeal against Marjorie Milanovich pursuant to Torres v. Oakland Scavenger Co., 487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).
In Torres a notice of appeal from a judgment of dismissal listed the names of fifteen out of sixteen plaintiffs as parties to the appeal but did not list plaintiff Jose Torres. Mr. Torres argued that the use of the term "et al." was enough to indicate his intention to appeal. The Supreme Court rejected this argument, stating that the use of the term "et al." did not comply with Federal Rule of Appellate Procedure 3(c) because it failed to provide fair notice of the specific individual seeking to appeal. Id. at 318, 108 S.Ct. at 2409.
"Et ux." is quite a different matter. Whereas "et al." means "and others" and could refer to an entire class of unnamed individuals or just to some members of that class, "et ux." is an abbreviation for et uxor, which means "and wife". As used after Gregory Milanovich's name in the caption of the notice, it could refer only to his wife. Moreover, the body of the notice states that "Plaintiffs hereby appeal." Because there were only two plaintiffs in this case, "Plaintiffs" can refer only to Gregory and Marjorie Milanovich. Accordingly, the notice of appeal provides fair notice of the specific individuals seeking to appeal, and the motion to dismiss is
Denied.