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2d 1469
7 Fed.R.Serv.3d 1400
BY THE COURT:
1
On our own motion we have raised the question of whether this court has
jurisdiction over this appeal. We conclude that where final judgment has been
entered as to all defendants who have been served with process and only
unserved defendants remain, the district court's order may be considered final
under 28 U.S.C. Sec. 1291 for purposes of perfecting an appeal.
Appellant John Insinga commenced this medical malpractice action in the state
courts of Florida in 1983, naming as defendants the Florida Department of
Both parties contend that this court has jurisdiction over this appeal. They
argue that Humana was the only remaining defendant in the district court, as
appellant asserts that he has no present intention of ever serving Canton with
process. All other circuits which have addressed this issue have held that where
an action is dismissed as to all defendants who have been served and only
unserved defendants remain, the district court's judgment may be considered a
final appealable order. See Bristol v. Fibreboard Corp., 789 F.2d 846, 847 (10th
Cir.1986); Patchick v. Kensington Publishing Corp., 743 F.2d 675, 677 (9th
Cir.1984); Leonhard v. United States, 633 F.2d 599, 608 (2d Cir.1980), cert.
denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981); United States v.
Studivant, 529 F.2d 673, 674 n. 2 (3d Cir.1976). These courts reason that a
defendant who has not been served with process is not a party for purposes of
Fed.R.Civ.P. 54(b). With only an unserved defendant remaining, there is no
reason to assume that there will be any further adjudication of the action.
We note that the district court did not merely grant a directed verdict in favor of
Humana; it issued an "ORDER GRANTING A DIRECTED VERDICT AND
A FINAL JUDGMENT IN FAVOR OF DEFENDANT HUMANA, INC., See
Distr.Ct. order at 1 (emphasis added). Thus, it appears that the district court
considered this order to be a final disposition of the case. The court did not,
however, make the required certification that there was no just reason for delay