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Donovan v. Penn Shipping Co.

U.S.
Feb 22, 1977
429 U.S. 648 (1977)

Summary

holding that a plaintiff may not appeal from a remittitur order he has accepted

Summary of this case from Glenayre Electronics, Inc. v. Jackson

Opinion

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

No. 76-613.

Decided February 22, 1977

A plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted. Hence, where petitioner seaman in his action under the Jones Act for injuries sustained on board ship accepted "under protest" a reduced verdict when the District Court ordered a new trial on damages unless petitioner agreed to a remittitur, the Court of Appeals properly dismissed petitioner's appeal from such order on the ground that a plaintiff cannot "protest" a remittitur he has accepted in an attempt to open it to challenge on appeal.

Certiorari granted; 536 F.2d 536, affirmed.


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 jury 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.


Summaries of

Donovan v. Penn Shipping Co.

U.S.
Feb 22, 1977
429 U.S. 648 (1977)

holding that a plaintiff may not appeal from a remittitur order he has accepted

Summary of this case from Glenayre Electronics, Inc. v. Jackson

affirming circuit court's dismissal of appeal

Summary of this case from Poliquin v. Garden Way, Inc.

approving the appellate court's enforcement of "the settled rule that a plaintiff who has accepted rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict"

Summary of this case from William Inglis Sons v. Continental Baking

noting that a plaintiff may not appeal a remittitur that he has accepted, even "under protest"

Summary of this case from Roe v. Elyea

In Donovan v. Penn Shipping Co., Inc., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977) (per curiam), the Supreme Court held that "a plaintiff in federal court... may not appeal from a remittitur order he has accepted" even where the plaintiff accepted the remitted award under protest.

Summary of this case from Cortez v. Trans Union, LLC

stating that "[t]he 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," which was recognized as dicta in Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 447 n. 6, 116 S.Ct. 2211, 2229 n. 6, 135 L.Ed.2d 659

Summary of this case from Evans v. Stephens

In Donovan v. Penn Shipping Co., Inc., 429 U.S. 648, 650 (1977) (per curiam), the Supreme Court reiterated "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."

Summary of this case from Utah Foam Products Co v. Upjohn Company

In Donovan the Supreme Court reaffirmed "the longstanding rule that a plaintiff in federal court, whether prosecuting a state of federal cause of action, may not appeal from a remittitur order he has accepted."

Summary of this case from Denholm v. Houghton Mifflin Co.

In Donovan, the Court held that acceptance of a remittitur, even under protest, bars appeal of the propriety of the remittitur order.

Summary of this case from Hattaway v. McMillian

In Donovan, the Court affirmed the application of the federal rule prohibiting the appeal of an accepted remittitur in diversity cases.

Summary of this case from Johnson v. Parrish

In Donovan v. Penn Shipping Co., Inc., 429 U.S. 648, 650, 97 S.Ct. 835, 837, 51 L.Ed.2d 112 (1977), the Supreme Court "reaffirm[ed] 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."

Summary of this case from 999 v. C.I.T. Corp.

In Donovan, the Supreme Court reaffirmed "the longstanding rule that a plaintiff... may not appeal from a remittitur order he has accepted."

Summary of this case from Aaro, Inc. v. Daewoo International (America) Corp.

In Donovan, as here, the plaintiff accepted the remittitur "under protest" and sought to reserve his right to appeal. Under Donovan we find that the acceptance under protest of the granting of the remittitur does not reserve the right to appeal and Judge Eaton's order is affirmed.

Summary of this case from Westerman v. Sears, Roebuck Co.

In Donovan, the Court reasoned that a plaintiff cannot accept a remittitur, or a remittitur under protest, and subsequently appeal it; this rule was firmly established in the nineteenth century.

Summary of this case from Ishimatsu v. Royal Crown Ins. Corp

In Donovan, the plaintiff accepted a remittitur under protest and attempted to reserve the right to appeal. Nevertheless, the United States Supreme Court noted that "[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," 429 U.S. at 649, 97 S.Ct. at 836 (citations omitted), and held 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."

Summary of this case from Dalton v. Herold

applying to federal courts the rule precluding appeal

Summary of this case from Surratt v. Prince George's County

In Donovan v. Penn Shipping Co., 429 U.S. 648, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977), for example, the United States Supreme Court stated that "[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[,]" even if the remittitur was accepted "under protest."

Summary of this case from Bernard v. Char
Case details for

Donovan v. Penn Shipping Co.

Case Details

Full title:DONOVAN v . PENN SHIPPING CO., INC., ET AL

Court:U.S.

Date published: Feb 22, 1977

Citations

429 U.S. 648 (1977)
97 S. Ct. 835

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