MARGIE L. TAPLEY ET AL., PLAINTIFFS,
v.
LOCKWOOD GREEN ENGINEERS, INC., DEFENDANT; WELDING AND STEEL FABRICATION CO., INC., DEFENDANT AND THIRD PARTY PLAINTIFF, V. GEORGE C. SEYBOLT ET AL., THIRD PARTY DEFENDANTS
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The court held that the order limiting damages was not immediately appealable as a collateral order because substantial rights would not be irreparably lost by delaying review.
Plaintiffs filed a wrongful death action, amended their complaint seeking higher damages after a statutory change, and the district court struck the i…
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[*560] PER CURIAM.
This case comes before the court after referral from the screening panel, Local Rule 6, upon appellees’ motion for summary dismissal. Local Rule 9 (b).
The case revolves around a Missouri wrongful death action. The initial complaint sought damages of $50,000, the maximum amount then recoverable under Missouri law for wrongful death. After the filing of this complaint the wrongful death statute of Missouri was amended to allow for unlimited recovery. Plaintiff-appellants in turn filed an amended complaint seeking $500,000 in damages. Defendants moved to strike the prayer of the amended complaint on the ground that the amendment to the statute did not apply retroactively. The district court issued its order granting the motion and stating that plaintiffs might amend their complaint by reducing the ad damnum to $50,000. Plaintiffs appealed. The appealability of that order is now before the court.
If the order is to be deemed appealable under 28 U.S.C. 1291, it must fall within the “collateral order doctrine.”1 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Baxter v. United Forest Products Co., 406 F. 2d 1120, 1123 (8th Cir. 1969). The order is not a final decision in the ordinary sense. Compare Delta Theatres v. Paramount Pictures, 259 F. 2d 563 (5th Cir. 1958).
We do not view this appeal as one where substantial rights of any party will be irreparably lost if review is delayed. Cohen, supra at 546, 69 S.Ct. 1221. Indeed, the problem here may be obviated by a verdict for defendants or a plaintiffs’ verdict for less than $50,000. If and when the case is ultimately appealed from final judgment, the issue presented here can be more appropriately dealt with at that time.
Appeal dismissed.
. The appeal lias not been certified under 28 classes enumerated in 28 U.S.C. § 1292(a). U.S.C. § 1292 (b); nor does it fall within the
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (U.S. 1949)
- Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (U.S. 1974)
- Baxter v. United Forest Prods. Co., Inc., 406 F.2d 1120 (8th Cir. 1969)
- DELTA Theatres, Inc. v. Paramount Pictures, Inc., 259 F.2d 563 (5th Cir. 1958)