Before KALODNER, GANEY and FREEDMAN, Circuit Judges.
This matter comes before the court on the appellee-third-party defendant's motion to dismiss the appeal of the defendant taken on April 10, 1964, from the denial of his motion for a new trial on October 10, 1963.
The history of the litigation is as follows: On October 1, 1959, the plaintiff, James Thompson, filed a complaint in the United States District Court for the Eastern District of Pennsylvania, alleging therein, unseaworthiness on the part of the defendant-owner, due to inadequacy of the stowage conditions on the vessel, and negligence in failing to supply a safe place to work in the course of his employment, as a result of which he was struck with dunnage from which he sustained substantial injuries. The defendant then joined the stevedoring company, B. H. Sobelman & Co., Inc., as third-party defendant on the theory of indemnity over. On May 7, 1963, after trial, the jury returned a verdict in favor of the plaintiff, against the defendant, in the sum of $22,500, and in favor of the third-party defendant the appellee, in the suit against it by the third-party plaintiff and judgment was entered thereon the same day. On May 9, 1963, the defendant filed a motion to set aside the judgments entered, as well as a motion for a new trial, both in the primary case against it by the plaintiff and also in the third-party action by it against the third-party defendant. On October 4, 1963, the court entered an order denying both motions of the defendant, but on October 10, 1963, entered an order amending the previous one of October 4, 1963, which read as follows:
"[The] defendant's motion for new trial in the original action will be granted as to the issue of damages only in the event that the plaintiff fails to remit all of the damages above the sum of $15,000 * * * within ten days * * *.
"IT IS FURTHER ORDERED that the defendant's motions to set aside the judgments in favor of the plaintiff and the third-party defendant are denied, and further that the motion for new trial as to the third-party defendant is denied." 222 F. Supp. 221, 225.
The plaintiff failed to accept the remittitur and proceeded to trial on the question of damages only, on March 16, 1964, in which the jury returned a verdict in the amount of $10,000 on March 18, 1964. On April 7, 1964, the plaintiff appealed from the judgment entered on this verdict as follows:
"Notice is hereby given that James Thompson, plaintiff in the above captioned action, hereby appeals to the United States Court of Appeals for the Third Circuit from the judgment entered on March 18, 1964; and in addition thereto, the order of October 4, 1963, as amended on October 10, 1963, in which the court required the plaintiff to file a remittitur to $15,000 or suffer a new trial on the issue of damages."
On April 10, 1964, the defendant filed a notice of appeal as follows:
"Notice is hereby given that the Trent Maritime Company, Ltd., and third-party plaintiff, hereby appeals to the United States Court of Appeals for the Third Circuit from the judgment of B. H. Sobelman & Co., Inc., third-party defendant, entered on May 7, 1963, and shall become final for purposes of appeal on March 18, 1964, by reason of entry of judgment in favor of the plaintiff against the defendant."
It is with the third-party defendant's motion to dismiss this appeal, as being untimely, that we are herewith concerned, as it is to be noted that neither the plaintiff nor the defendant filed motions for new trial on the judgment entered on March 18, 1964.
There can be no question that an appeal from the judgment of a district court must be taken to this court within thirty days, pursuant to Rule 73 (a) of the Federal Rules of Civil Procedure*fn1 This time is not to be extended beyond the period fixed, except for fraud, deception, coercion or duress. Old Nick Williams v. United States, 215 U.S. 541, 30 S. Ct. 221, 54 L. Ed. 318. Since a final judgment of a court not appealed from within thirty days is conclusive against a party, further consideration therefore elicits the inquiry, in our instance, as to whether the judgment entered on May 7, 1963, in accordance with the verdict of the same day, was a final judgment, so as to be appealable. If so, defendant's appeal on April 10, 1964, is not timely, and if it was not a final judgment at the time, the appeal of April 10, 1964 will be timely.
In making this determination, we must take into consideration Rule 54(b) of the Federal Rules of Civil Procedure, amended in 1946 to take effect in 1948, which reads as follows:
"(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or ...