DONOVAN
v.
PENN SHIPPING CO., INC., ET AL.
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A plaintiff in federal court who accepts a remittitur order, even under protest, cannot appeal to seek reinstatement of the original verdict.
A seaman injured on the job sued under the Jones Act and won a jury verdict. The trial court ordered a new trial unless the plaintiff accepted a reduc…
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Per Curiam.
The petitioner, while employed by the respondents as a seaman on the SS Penn Sailor, slipped on wet paint, injuring his right wrist and elbow. He sued the respondents under the Jones Act, 46 U. S. C. § 688, and obtained a $90,000 verdict at his juiy trial. The respondents moved to set aside the verdict as excessive. Fed. Rules Civ. Proc. 50, 59. The District Court granted the motion, and ordered a new trial on damages unless the petitioner agreed to remit $25,000 of the $90,000 award.
After some time the petitioner submitted to the District Court a proposed order stating that he accepted “under protest” the reduced verdict of $65,000, but reserving nonetheless “his right to appeal therefrom.” This language was adopted by the District Court in entering a judgment for the petitioner in the amount of $65,000.
The petitioner sought appellate review of the District Court’s decision to order a conditional new trial. In so doing he asked the Court of Appeals for the Second Circuit to discard the settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict. The Court of Appeals refused the petitioner’s invitation, and dismissed the appeal. 536 F. 2d 536.
The Court of Appeals properly followed our precedents in holding that a plaintiff cannot “protest” a remittitur he has accepted in an attempt to open it to challenge on appeal. A line of decisions stretching back to 1889 has firmly established that a plaintiff cannot appeal the propriety of a remittitur order to which he has agreed. Kennon v. Gilmer, 131 U. S. 22, 29-30 (1889); Lewis v. Wilson, 151 U. S. 551, 554-555 (1894); Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 41, 52 (1895); Woodworth v. Chesbrough, 244 U. S. 79, 82 (1917).
There are decisions in the Federal Courts of Appeals that depart from these unbroken precedents. Those decisions held or intimated that a plaintiff who accepts a remittitur “under protest” may challenge on appeal the correctness of the remittitur order. See, e. g., Bonn v. Puerto Rico Int’l Airlines, Inc., 518 F. 2d 89, 94 (CA1 1975); United States v. 1160.96 Acres of Land, 432 F. 2d 910 (CA5 1970); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F. 2d 1033 (CA5 1970) ; Steinberg v. Indemnity Ins. Co. of North America, 364 F. 2d 266 (CA5 1966) ; Delta Engineering Corp. v. Scott, 322 F. 2d 11, 15 (CA5 1963). Other decisions have suggested that when entertaining cases pursuant to its diversity jurisdiction, a federal court should look to state practice to determine whether such an appeal is permitted. See Burnett v. Coleman Co., 507 F. 2d 726 (CA6 1974); Manning v. Altec, Inc., 488 F. 2d 127 (CA6 1973); Mooney v. Henderson Portion Pack Co., 334 F. 2d 7 (CA6 1964).
The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is, however, a matter of federal law, see Hanna v. Plumer, 380 U. S. 460, 466-469 (1965); Byrd v. Blue Ridge Rural Electric Coop., 356 U. S. 525 (1958), and that law has always prohibited appeals in the situation at bar. The Court of Appeals for the Second Circuit correctly adhered to the consistent rule established by this Court’s decisions. In order to clarify whatever uncertainty might exist, we now reaffirm the longstanding rule that a plaintiff in federal court, whether prosecuting a.state or federal cause of action, may not appeal from a remittitur order he has accepted.
The petition for a writ of certiorari is granted, and the judgment is affirmed.
So ordered.
The Chief Justice and Mr. Justice Blackmun would grant the petition for certiorari but would have the case argued and given plenary consideration rather than disposed of summarily.
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Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (U.S. 1989)…er in determining their amount, are questions of state law.24 Federal [*279] law, however, will control on those issues involving the proper review of the jury award by a federal district court and court of appeals. See Donovan v. Penn Shipping Co., 429 U. S. 648, 649-650 (1977); see also 6A J. Moore, J. Lucas, & G. Grotheer, Moore’s Federal Practice, ¶ 59.04[1] (2d ed. 1987). In reviewing an award of punitive damages, the role of the district court is to determine whether the jury’s verdict is within the c…
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Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (U.S. 1996)…the characteristic of the federal court system that caused us to reaffirm: “The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is ... a matter of federal law.” Donovan v. Penn Shipping Co., 429 U. S. 648, 649 (1977) (per curiam); see also Browning-Ferris, 492 U. S., at 279 (“[T]he role of the district court is to determine whether the jury’s verdict is within the confines set by state law .... The court of appeals should then review the district cou…1 / 3
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Ohio-Sealy Mattress Mfg. Co. v. Sealy, 585 F.2d 821 (7th Cir. 1978)…entitled to make this argument, despite Sealy’s protestations. It is quite true that a plaintiff who accepts a remittitur may not appeal from the district court order proposing it as an alternative to a new trial. Donovan v. Penn Shipping Co., Inc., 429 U.S. 648, 650, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977). The Donovan principle also forecloses Ohio from seeking reinstatement of the 50% remitted now that Sealy attacks the remittitur on appeal. As this court held in the recent case of Durant v. Surety Homes Cor…1 / 2
Previewing 3 of 67 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Hanna v. Plumer, 380 U.S. 460 (U.S. 1965)
- Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525 (U.S. 1958)
- Gorsalitz v. Olin Mathieson Chem. Corp., 429 F.2d 1033 (5th Cir. 1970)
- Kennon v. Gilmer, 131 U.S. 22 (U.S. 1889)
- Koenigsberger v. Richmond Silver Mining Co., 158 U.S. 41 (U.S. 1895)
- DELTA Eng'g Corp. & the Travelers Ins. Co. v. Scott, 322 F.2d 11 (5th Cir. 1963)
- Woodworth v. Chesbrough, 244 U.S. 79 (U.S. 1917)
- Lewis v. Wilson, 151 U.S. 551 (U.S. 1894)
- The United States v. 1160.96 Acres OF Land, 432 F.2d 910 (5th Cir. 1970)
- Manning v. Altec, Inc., 488 F.2d 127 (6th Cir. 1973)