441 F.2d 407 (6th Cir. 1971), Misc. 1203, Woods v. Baltimore & Ohio Railroad Co.

Docket Nº:Misc. 1203.
Citation:441 F.2d 407
Party Name:Wilford E. WOODS, Petitioner, v. BALTIMORE AND OHIO RAILROAD COMPANY, Respondent.
Case Date:April 27, 1971
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 407

441 F.2d 407 (6th Cir. 1971)

Wilford E. WOODS, Petitioner,

v.

BALTIMORE AND OHIO RAILROAD COMPANY, Respondent.

Misc. No. 1203.

United States Court of Appeals, Sixth Circuit.

April 27, 1971

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.

PER CURIAM.

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

Page 408

claims of the second amended complaint were barred by the Court's order of July 8...

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