The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
As courts of limited jurisdiction, federal district courts
always must decide whether they have subject matter jurisdiction,
and thus power, to rule in a case. This case adds a wrinkle to
that question. In deciding whether we have jurisdiction, we must
decide whether the appellate court has jurisdiction over an
appeal which defendant has filed. On July 3, 1985, we granted
plaintiff Co-Operative Shippers, Inc.'s ("Co-Op") motion for
partial summary judgment. See 613 F. Supp. 788 (N.D.Ill. 1985).
Defendant ("Santa Fe") had already admitted liability for
damaging goods which Co-Op had shipped through Santa Fe but had
contested Co-Op's claim for the full actual cost of the damaged
freight. We held that Santa Fe was liable for the full cost of
the goods but not for court costs, attorney's fees or interest.
613 F. Supp. at 795. We did not determine the actual value of the
goods or the amount of damages. Also on July 3, the Court's clerk
completed and docketed a form entitled "Judgment in a Civil Case"
which repeated the final paragraph of our opinion. See Id. at
795. This form is the one specified in Fed.R.Civ.P. 58 and, when
docketed, starts the running of the 30-day clock for filing of a
notice of appeal. Santa Fe filed a notice of appeal on August 1,
1985. One day later, Co-Op filed a "motion for Judgment in a Sum
Certain."1 Santa Fe promptly moved to strike this motion, arguing
that the notice of appeal divested this Court of jurisdiction to
decide the motion. Co-Op filed a "Motion to Ignore the Notice of
Appeal," asserting that the July 3 decision was not final and
thus not appealable. The Court of Appeals has held the briefing
of the appeal in abeyance pending our resolution of these
motions. For the reasons stated below in Part A, we conclude that
the July 3 order was not appealable, and that therefore we have
jurisdiction to rule on Co-Op's motion for judgment in a sum
certain. In Part B, we grant that motion.
Our resolution of the jurisdictional issue involves several
straightforward principles of law. We begin with the premise,
which Santa Fe does not dispute, that we have jurisdiction to
determine our own jurisdiction. Whether we have jurisdiction
depends in turn on whether the appellate court has jurisdiction.
That is because the filing of a notice appeal usually divests the
district court of jurisdiction. See, e.g., Ced's Inc. v. United
States EPA, 745 F.2d 1092, 1095 (7th Cir. 1984), cert. denied,
___ U.S. ___, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985); United
States v. Bastanipour, 697 F.2d 170, 173 (7th Cir. 1982), cert.
denied, 460 U.S. 1091, 103 S.Ct. 1790, 76 L.Ed.2d 358 (1983).
However, this rule does not operate where the order appealed from
is non-appealable. Id. Thus, we must decide whether the order
appealed from, the July 3 opinion, was appealable.
Appellate jurisdiction usually depends on 28 U.S.C. § 1291,*fn2
which says in relevant part, "[t]he courts of appeal . . .
shall have jurisdiction of appeals from all final decisions of
the district courts . . ." (emphasis added). An order is "final"
(and thus appealable) under § 1291 if it "`ends the litigation on
the merits and leaves nothing for the court to do but execute the
judgment.'" Local P-171 v. Thompson Farms Co., 642 F.2d 1065,
1069 (7th Cir. 1981), quoting Catlin v. United States,
324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). It is clear
that our July 3 opinion is not final under this definition of
finality. The litigation on the merits is not over: the parties
are still skirmishing over the proper amount of damages. There is
no money judgment to execute.
Our conclusion that the July 3 order is not final is consistent
with those cases involving appeals from grants of partial summary
judgment. When a court grants "partial" summary judgment on one
issue, see Fed.R.Civ.P. 56(d), or grants so-called
"interlocutory" summary judgment, see Fed.R.Civ.P. 56(c)
(authorizing summary judgment as to liability only), the order is
not "final" under § 1291. See Liberty Mutual Ins. Co. v. Wetzel,
424 U.S. 737, 744, 96 S.Ct. 1202, 1206-07, 47 L.Ed.2d 435 (1976);
Wolf v. Banco National De Mexico, S.A., 721 F.2d 660, 662 (9th
Cir. 1983); Local P-171, 642 F.2d at 1070; 10 C. Wright, A.
Miller & M. Kane, Federal Practice & Procedure, § 2715 at 631-34
(1983). This case involved just such a "partial" summary
judgment. Liability had been conceded and our July 3 opinion
defined the scope of damages available. This was a generic rather
than specific decision. We did not decide the actual amount of
damages to be awarded. That the parties now dispute the proper
amount of damages shows that the damages question is not merely
a ministerial or accounting one. This case is a fairly
straightforward one and should, if possible, be decided in one
appeal. Santa Fe would needlessly have us divide and thereby
complicate and delay the case. Instead of separating the pending
damage issue from the one we decided on July 3, and create the
likelihood and delay of two appeals, judicial economy dictates
that we decide all remaining issues before review by the court of
In summary, we granted summary judgment in part on July 3,
deciding that Co-Op was entitled to the full actual value of its
damaged goods, but leaving undecided the issue of what the actual
value is. Accordingly, under the principles stated herein, we
hold that our July 3 opinion was not a "final" decision and hence
was not appealable.*fn3 It follows from this conclusion that the
notice of appeal has not stripped us of jurisdiction, and that
the "separate document" filed on July 3 under Rule 58 was
improvidently docketed and is void. Having so ruled, we are ready
to consider Co-Op's motion for judgment in sum certain.
The parties agree on several elements of damages: that the
value of the damaged goods was $95,103.40, that Co-Op salvaged
them for $42,332.16, and that it incurred $17,227.40 to salvage
the goods, leaving a net loss of $73,656.46. Co-Op claims,
however, that it is entitled as a matter of law to pre-judgment
interest on the damages from the date of the accident. Santa Fe
disagrees and also contends that the $17,227.40 in salvage costs
were excessive and unreasonable. We consider each issue in turn.
Co-Op is correct that an award of pre-judgment interest as part
of the "full actual loss" is proper under both the Carmack
Amendment, 49 U.S.C. § 11707, and common law. See, e.g., George
R. Hall, Inc. v. Superior Trucking Co., 532 F. Supp. 985, 996-98
(N.D.Ga. 1982); also Lehigh Valley R. Co. v. State of Russia,
21 F.2d 396, 406 (2d Cir. 1927); Ex Parte No. 263, Rules,
Regulations, and Practices of Regulated Carriers with Respect to
the Processing of Loss and Damage Claims, 340 I.C.C. 515, 569-70
(1972). Such an award is discretionary, see George R. Hall, 532
F. Supp. at 985, and we see no reason why pre-judgment interest
should not be awarded. Such an award will make Co-Op whole. To
the extent the "liquidated" nature of the damages is relevant, if
at all, see George R. Hall, 532 F. Supp. at 997, the actual
damages in this case have been largely admitted and certain. We
do not see why the few disputes as to the damages argues against
interest as part of a make-whole remedy. Santa Fe's remaining
arguments about the propriety of pre-judgment interest also lack
merit and are rejected.
Having decided that pre-judgment interest is properly part of
the "full actual value" of the damaged goods, we must determine
which interest rate to apply, federal or state. Since federal law
has controlled up to this point, including our decision to award
pre-judgment interest, we think federal law should determine the
interest rate as well. While no federal statute directly
prescribes the rate for a case like this, an appropriate federal
rate can be discerned from analogous statutes and cases.
Before 1982, the statute which governs post-judgment interest
for civil money judgments in federal court, 28 U.S.C. § 1961,
provided that the forum state's law determined the rate of
interest. In 1982, § 1961 was ...