On Petition for Rehearing November 18, 1986.
Before: VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges.
In our earlier decision, 794 F.2d 816 (2d Cir. 1986), familiarity with which is assumed, we remanded the matter with instructions to vacate the judgment against the State of Vermont (the "State") and to enter judgment against defendant St. Johnsbury & Lamoille County Railroad, Inc. (:St. Johnsbury Railway"),*fn1 in the amount of the National Railroad Adjustment Board's ("NRAB") award. St. Johnsbury Railway has petitioned for rehearing. For the reasons stated below, we grant the petition and vacate the order directing entry of judgment against St. Johnsbury Railway.
A brief review of earlier proceedings is necessary. In April 1985, the Brotherhood of Maintenance of Way Employees ("BMWE") brought an action in the District of Vermont seeking St. Johnsbury Railway and various other parties, including the State of Vermont. The BMWE moved for summary judgment against all defendants, and the State of Vermont and St. Johnsbury Railway moved for summary judgment against BMWE. On October 11, 1985, the district court granted St. Johnsbury Railway's motion, denied the State's motion, and granted BMWE's motion only "with respect to defendant State of Vermont with regard to the issue of liability to pay the NRAB awards." On December 20, 1985, the district court entered judgment against the State pursuant to a stipulated amount due each claimant.
On January 15, 1986, the State appealed from the grant of summary judgment against it. BMWE neither appealed nor cross-appealed from the grant of summary judgment to St. Johnsbury Railway. A letter submitted to this court by counsel for the State and St. Johnsbury Railway. The letter, which was sent to all counsel, stated:
Appellants State of Vermont/Vermont Public Service Board/Vermont Transportation Authority ("State of Vermont") do not appeal from the following orders of the district court:
(1) Denial of the motion for summary judgment by plaintiff-appellee Brotherhood of Maintenance of Way Employees ("BMWE") against defendant St. Johnsbury and Lamoille County Railroad, Inc. ("S.J. & L.C."); and
(2) Granting of the motion for summary judgment by St.J. & L.C. against BMWE.
St. Johnsbury Railway was not a party to the appeal, and neither the State nor BMWE's failure to cross-appeal deprived us of jurisdiction to modify the district court's judgment by directing the entry of judgment against St. Johnsbury Railway. We agree.
The well-established rule is that
the failure of an appellee to file a notice of appeal from portions of the judgment adverse to him precludes the alteration of the judgment in his favor, though reversal of the judgment as applied to the appealing party may leave the final disposition of the case internally inconsistent.
The same is true when the plaintiff prevails against one defendant and his claim against another is dismissed, and the unsuccessful defendant appeals. If the appellee wishes to upset the dismissal he must file a timely notice of appeal. Otherwise it is res judicata. Thus the rights of a party under a judgment cannot be disturbed except on appeal by a party aggrieved.
9 Moore's Federal Practice P 204.11, at 4-54 (1986). Zapico v. Bucyrus-Erie Co., 579 F.2d 714 (2d Cir. 1978), is controlling. In that case, the plaintiffs obtained a judgment against the defendant, while the defendant obtained a judgment against a third-party defendant indemnitor. The defendant failed to appeal or cross-appeal from the portion of the judgment in favor of plaintiffs. As a result, it was prevented from raising on the third-party defendant's appeal "a claim that the plaintiffs' unappealed judgments against it should be reduced." 579 F.2d at 725. Judge Friendly wrote for the court that the defendant's "failure to cross-appeal precludes us from considering any proposals that would reduce the amount of plaintiffs' judgments even if we were otherwise persuaded to do so." Id. at ...