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November 25, 1985


The opinion of the court was delivered by: Aspen, District Judge:


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 appeals.

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.

1. Interest

Initially we must dispel any doubts that our July 3 opinion forecloses assessment of pre-judgment interest. In that opinion, we held that Co-Op could not contractually recover interest under Item 37 of ATSF Circular No. TOFC-1. See 613 F. Supp. at 795. In so ruling, we did not decide whether some other basis for claiming interest exists. Our opinion thus does not foreclose Co-Op's current argument that it is statutorily entitled to pre-judgment interest.

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 ...

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