MATHEWS, Circuit Judge.
This appeal was taken in an action brought against appellee, E. E. Black, Ltd., on November 14, 1945, to enforce causes of action, hereafter called claims, for unpaid overtime compensation and liquidated damages under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. §§ 201-219. The action was brought by appellant, Kam Koon Wan, an employee of appellee, for and in behalf of himself and other employees similarly situated.
Appellant was specifically named in the complaint as a party plaintiff to the action. Other employees similarly situated filed motions to intervene. There were three such motions. The first motion was filed by 245 employees
Appellee filed an answer on March 27, 1946, an amended answer on January 31, 1947, a motion for a summary judgment on August 15, 1947, and a second amended answer on August 26, 1947. The motion for a summary judgment was heard on September 12, 1947. An opinion entitled "Ruling upon motion for a partial summary judgment" was filed on February 5, 1948.
The appeal purports to be "from the final judgment entered in this case on the 20th day of January, 1949." There was no such judgment. The first so-called judgment filed on January 20, 1949 — the one
The second so-called judgment filed on January 20, 1949 — the one entitled "Judgment" and hereafter called the judgment — adjudicated appellant's claim and the claims of 161 of the interveners. The other 150 interveners were not mentioned in the judgment or, if mentioned, were designated by names which differed from those by which they were designated in the motions to intervene. We therefore cannot say that the judgment adjudicated the claims of all the interveners.
Rule 54(b) of the Federal Rules of Civil Procedure provides: "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims 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 less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision [by the district court] at any time before the entry of judgment adjudicating all the claims."
The "determination and direction" mentioned in Rule 54(b) were absent in this case. We therefore cannot say that the judgment was, as to appellant or anyone else, a final judgment.
Rule 58 of the Federal Rules of Civil Procedure provides: "* * * The notation of a judgment in the civil docket as provided by Rule 79(a) constitutes the entry of the judgment; and the judgment is not effective before such entry. * * *"
Rule 79(a) of the Federal Rules of Civil Procedure provides: "* * * All papers filed with the clerk, all process issued and returns made thereon, all appearances, orders, verdicts, and judgments shall be noted chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number. These notations shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court and of the returns showing execution of process. * * *"
The judgment in this case was not noted in the civil docket as provided by Rule 79(a). There was, it is true, a notation in the civil docket reading as follows: "Entering proceedings at Entry of Judgment Filing Partial Summary Judgment (McLaughlin) Filing Judgment Entered at 1:30 p. m. 1-20-49." That, however, was not a notation of the judgment as provided by Rule 79(a), for it did not show the substance of the judgment as provided by that rule. It therefore did not constitute an entry of the judgment.
No final judgment having been entered, the appeal must be dismissed.
On April 6, 1950, a motion for leave to amend the complaint was filed in this court by appellant. After the appeal is dismissed, plaintiffs (appellant and interveners) will have an opportunity to file such a motion in the District Court. The motion of April 6, 1950, is denied without prejudice.