Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

In dismissing respondents’ action against petitioner under § 10(b) of the Securities Exchange Act of 1934, the District Court failed to set forth the judgment in a separate document as required by Fed.Rule Civ.Proc. 58. Despite the absence of a separate judgment, but without objection by petitioner, the Court of Appeals assumed appellate jurisdiction under 28 U.S.C. § 1291, giving courts of appeals jurisdiction of appeals from all "final decisions" of the district courts, and reversed on the merits.

Held:

1. Under the circumstances, the parties should be deemed to have waived Rule 58’s separate judgment requirement, and hence the Court of Appeals properly assumed appellate jurisdiction under § 1291.

2. Where, however, the case’s posture changed between the time of the Court of Appeals’ decision and the presentation of the case to this Court, respondents’ counsel having urged here that the Court of Appeals’ judgment be affirmed on a theory different from that court’s reasoning in reversing the District Court, the writ of certiorari is dismissed as having been improvidently granted.

Certiorari dismissed. Reported below: 568 F.2d 824.