Robert J. Seltzner v. Rdk Corporation, an Indiana Corporation D/B/A Cortney's Restaurant

Mar 6, 1985
85-1011
Versions:756 F.2d 51
1 Fed. R. Serv. 3d 984
1985 U.S. App. LEXIS 29297
PER CURIAM.

The jury in this diversity personal-injury case brought in a verdict for the plaintiff of $69,500. On the defendant’s motion the district judge ordered a new trial unless the plaintiff would agree to remit $29,500 of the jury’s award. The plaintiff has appealed from this order, and the defendant has moved to dismiss the appeal.

An order for a new trial is not a final order appealable under 28 U.S.C. § 1291; and since the plaintiff in this case refused to accept the remittitur, the order from which he is appealing is an order for a new trial, and is not appealable. Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam). If the plaintiff isn’t satisfied with the outcome of the new trial he can appeal from the judgment entered at the conclusion of that trial and can seek reinstatement of the original jury award. See id. at 36, 101 S.Ct. at 190. We add for completeness that if the plaintiff had accepted the remittitur, he could not appeal at all. Donovan v. Penn Shipping Co., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977) (per curiam).

Appeal Dismissed.