Rohrer, Hibler Replogle, Inc v. Perkins

Citation105 S.Ct. 265,83 L.Ed.2d 201,469 U.S. 890
Decision Date09 October 1984
Docket NumberNo. 83-1759,83-1759
PartiesROHRER, HIBLER, & REPLOGLE, INC. v. Robert D. PERKINS
CourtUnited States Supreme Court

On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

The petition for a writ of certiorari is denied.

Justice WHITE, with whom Justice BLACKMUN joins, dissenting.

In 1977, respondent, Dr. Robert Perkins, signed a contract of employment with petitioner Rohrer, Hibler & Replogle, Inc. The contract provided that the Circuit Court of Cook County, Ill., would have jurisdiction over any disputes that might arise between the parties. In 1983, such a dispute arose, and petitioner filed suit against respondent in the Cook County Circuit Court. Respondent removed the suit to the United States District Court for the Northern District of Illinois on grounds of diversity. Arguing that the contract required that the dispute be adjudicated in the Cook County court, petitioner filed a motion to remand to the state court. The District Court denied the motion on the ground that the contractual provision was not a mandatory forum selection clause, and petitioner attempted to appeal the ruling.

The Seventh Circuit held that it lacked jurisdiction to hear an interlocutory appeal from the denial of the motion to remand. 728 F.2d 860. The court rejected petitioner's theory that the order was appealable under 28 U.S.C. § 1291 because it fell into "that small class [of orders] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). The court noted that there was no reason to believe that the order would be effectively unreviewable on appeal from final judgment. The court also declined to hold the order reviewable under the All Writs Act, 28 U.S.C. § 1651, on the ground that a petition for a writ of mandamus may not be used as a substitute for an appeal. Finally, the court held that the order was not reviewable under 28 U.S.C. § 1292(a)(1), which allows appeals from interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." Petitioner contended that this provision was applicable by virtue of Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935), and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942), which hold that a stay issued to allow consideration of an equitable defense is an "injunction" for purposes of § 1292(a)(1). The Seventh Circuit pointed out, however, that remanding a case to a state court was not the equivalent of issuing a stay; accordingly, the denial of the motion was not appealable under § 1292(a)(1).

In short, the Seventh Circuit held that a district court's interlocutory order declining to give effect to a contractual forum selection clause is not an appealable order under 28 U.S.C. § 1291. This holding appears to place the Seventh Circuit in direct conflict with the Third Circuit, which...

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9 cases
  • Hodes v. S.N.C. Achille Lauro ed Altri-Gestione
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 22 Septiembre 1988
    ...844 F.2d 50 (2d Cir.1988); 1 Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 862-64 (7th Cir.), cert. denied, 469 U.S. 890, 105 S.Ct. 265, 83 L.Ed.2d 201 (1984). Cf. Nascone v. Spudnuts, Inc., 735 F.2d 763 (3d Cir.1984) (no appellate jurisdiction over a motion to transfer venue wi......
  • U.S. v. Horak
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 5 Noviembre 1987
    ...for extreme situations." Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 863 (7th Cir.), cert. denied, 469 U.S. 890, 105 S.Ct. 265, 83 L.Ed.2d 201 (1984); J.H. Cohn & Co. v. American Appraisal Assocs., 628 F.2d 994, 997 (7th Cir.1980); see also United States v. Dorfman, 690 F.2d 1......
  • Lauro Lines v. Chasser, 88-23
    • United States
    • United States Supreme Court
    • 22 Mayo 1989
    ...of motion to dismiss on basis of forum-selection clause not to be immediately appealable under § 1291), cert. denied, 469 U.S. 890, 105 S.Ct. 265, 83 L.Ed.2d 201 (1984), with Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 908 (CA3 1988), cert. dism'd, 490 U.S. 1001, 109 S.Ct......
  • Chasser v. Achille Lauro Lines
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 7 Abril 1988
    ...1031, 1032-34 (5th Cir.1987); Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 862 (7th Cir.), cert. denied, 469 U.S. 890, 105 S.Ct. 265, 83 L.Ed.2d 201 (1984). We are persuaded that the latter view is correct because we believe the refusal to dismiss on forum-selection grounds is ......
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