728 F.2d 860 (7th Cir. 1984), 83-2568, Rohrer, Hibler & Replogle, Inc. v. Perkins

Docket Nº:83-2568.
Citation:728 F.2d 860
Party Name:ROHRER, HIBLER & REPLOGLE, INC., a Delaware corporation, Plaintiff-Appellant, v. Dr. Robert D. PERKINS, Defendant-Appellee.
Case Date:February 16, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 860

728 F.2d 860 (7th Cir. 1984)

ROHRER, HIBLER & REPLOGLE, INC., a Delaware corporation,



Dr. Robert D. PERKINS, Defendant-Appellee.

No. 83-2568.

United States Court of Appeals, Seventh Circuit

February 16, 1984

Submitted Feb. 1, 1984.[*]

Page 861

Robert J. Lepri, McDermott, Will & Emery, Chicago, Ill., for plaintiff-appellant.

Stephen C. Schulte, Winston & Strawn, Chicago, Ill., J.D. Humphries, Varner, Stephens, Wingfield, McIntyre Humphries, Atlanta, Ga., for defendant-appellee.

Before PELL, WOOD and CUDAHY, Circuit Judges.


This case arises out of an employment contract between Dr. Perkins and his former employer, Rohrer, Hibler & Replogle, Inc. ("RHR"). Dr. Perkins filed suit in a federal court in Georgia, seeking a declaratory judgment that the restrictive covenants in his contract are void and unenforceable. RHR then filed the instant suit in the Circuit Court of Cook County, Illinois, requesting injunctive relief against Dr. Perkins. RHR brought suit in Cook County pursuant to a forum selection clause in the contract, which provides:

This agreement is to be enforced and interpreted in accordance with the laws of the State of Illinois. Employee agrees that the Circuit Court of Cook County, Illinois shall have jurisdiction to enforce any of the terms of this Agreement and/or to resolve any dispute which arises under this agreement and employee hereby consents to and submits to the jurisdiction of the Circuit Court of Cook County over his person for the purposes of enforcing any terms of this agreement or resolving any disputes which arise under this agreement.

After the Circuit Court issued a temporary injunction, Dr. Perkins removed the case to federal court. RHR filed a motion to remand the case to state court which was denied by the judge below, reconsidered, and denied again. RHR appealed to this court.

The first issue we must consider is whether we have jurisdiction to decide an appeal of an order denying a motion to remand to a state court. RHR contends that jurisdiction over this appeal is conferred by 28 U.S.C. Secs. 1291, 1292(a)(1) and 1651.

This court's jurisdiction under Sec. 1291 normally "depends on the existence of a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). An order denying a motion to remand a case to state court cannot, by any stretch of the imagination, be considered "final" within the meaning of Sec. 1291. Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 578, 74 S.Ct. 290, 293, 98 L.Ed. 317 (1954) ("Obviously, such an order is not final and appealable if standing alone."); Ex parte Hoard, 105 U.S. 578, 15 Otto 578, 26 L.Ed. 1176 (1881); Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 877 n.

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2 (1st Cir.1983); Melancon v. Texaco, Inc., 659 F.2d 551, 552 (5th Cir.1981); Three J Farms, Inc. v. Alton Box Board Co., 609 F.2d 112, 114 (4th Cir.1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980); Aberle Hosiery Co. v. American Arbitration Ass'n, 461 F.2d 1005, 1006 (3rd Cir.1972); Wilkins v. American Export-Isbrandtsen Lines, Inc., 401 F.2d 151 (2d Cir.1968); 1A J. Moore, B. Ringle & J. Wicker, Moore's Federal Practice p 0.169[2.-3], at 706 (1983); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3914, at 548 (1976).

An order may, however, be appealable under Sec. 1291 if it falls within "that small class 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...

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