Woods v. Baltimore and Ohio Railroad Company, Misc. No. 1203.
| Decision Date | 27 April 1971 |
| Docket Number | Misc. No. 1203. |
| Citation | 441 F.2d 407 |
| Parties | Wilford E. WOODS, Petitioner, v. BALTIMORE AND OHIO RAILROAD COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles Alan Wright, Austin, Tex., James E. McLaughlin, Pittsburgh, Pa., Robert Frost, Columbus, Ohio, for petitioner.
Robert B. McAlister, Alexander, Ebinger, Holschuh, Fisher & McAlister, Columbus, Ohio, for respondent.
Before PHILLIPS, Chief Judge, and PECK and BROOKS, Circuit Judges.
The only issue in this case for present purposes is whether the Court has jurisdiction to permit an interlocutory appeal from an order of the District Court holding certain claims in an FELA personal injury action barred by that statute's statute of limitations. Specifically, the question is whether there was a timely application for permission to take an interlocutory appeal under the provisions of 28 U.S.C. § 1292(b) and Rule 5(a), F.R.A.P., which require the application for permission to appeal to be filed in the Court of Appeals within 10 days after the District Judge enters the order and certifies that the order involves a controlling question of law on which there is a ground for substantial difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation.
Since the controlling question is one of timeliness, the following chronology may be helpful. The original complaint was filed in 1966, alleging that the plaintiff suffered certain injuries in an accident on January 14, 1965. On January 20, 1969, by leave of Court, the plaintiff filed an amended complaint, alleging additional injuries resulting from three separate occurrences from 1965 to 1967 subsequent to his original injury on January 14, 1965. On July 8, 1969, the District Court sustained the defendant's motion for summary judgment with respect to the three additional claims of the plaintiff's amended complaint, holding that they were barred by the FELA's statute of limitations. In April, 1970, by leave of Court, the plaintiff filed a second amended complaint, alleging, in essence, that the subsequent injuries alleged in the prior amended complaint were all the result of the original injury on January 14, 1965. On August 4, 1970, the District Court held that the claims of the second amended complaint were barred by the Court's order of July 8, 1969, since they involved separate claims arising out of separate occurrences. Recognizing, however, that the ruling would eliminate a large part of the plaintiff's claimed damages from the trial, the District Court certified that an interlocutory appeal from that order would materially advance the ultimate termination of the litigation. The plaintiff had 10 days from the entry of that order on August 4, 1970, within which to seek permission in this Court for an interlocutory appeal (Rule 5(a), F.R.A. P.), but no application for permission was filed within that time. When plaintiff's trial counsel assertedly "discovered" that no application for permission had been timely filed, he moved the District Court in late February, 1971, to vacate its August 4, 1970 order and refile it in order to permit an application to be filed. Over the defendant's objection, the District Court, on March 3, 1971, ordered its August 4, 1970, order vacated and further ordered that "the Court's Opinion and Order of August 4, 1970,...
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...P 204.07 at 916-17.13 See 9 Moore's Federal Practice P 205.03(2) at 1107 (1975).14 515 F.2d 94, 95 (1st Cir. 1975).15 441 F.2d 407 (6th Cir. 1971) (per curiam).16 366 F.Supp. 1221 (S.D.N.Y.1973).17 Cf. Borskey v. American Pad & Textile Co., 296 F.2d 894, 895 (5th Cir. 1961).18 260 F.2d 431 ......
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