824 F.2d 84 (D.C. Cir. 1987), 85-5981, Tidler v. Eli Lilly and Co., Inc.

Docket Nº:85-5981.
Citation:824 F.2d 84
Party Name:Suzanne E. TIDLER, et al., Appellants Helene Mankowitz, et al. v. ELI LILLY AND COMPANY, INC. (Two Cases).
Case Date:July 24, 1987
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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824 F.2d 84 (D.C. Cir. 1987)

Suzanne E. TIDLER, et al., Appellants Helene Mankowitz, et al.

v.

ELI LILLY AND COMPANY, INC. (Two Cases).

No. 85-5981.

United States Court of Appeals, District of Columbia Circuit

July 24, 1987

Appeals from the United States District Court for the District of Columbia (Civil Action No. 80-02795).

Aaron M. Levine, Washington, D.C., was on appellants' response to order to show cause.

James A. Hourihan, Gail L. Heriot and Terri A. Steinhaus, Washington, D.C., were on appellee Eli Lilly and Company's response to the response of appellants to order to show cause.

Before WALD, Chief Judge, and MIKVA and WILLIAMS, Circuit Judges.

Opinion PER CURIAM.

ON ORDER TO SHOW CAUSE

PER CURIAM:

This action stems from a product liability suit for damages related to ingestion of diethylstilbestrol ("DES") allegedly manufactured by Eli Lilly and Company, Inc. (hereafter "Lilly"). On August 23, 1985, the district court granted Lilly's motion for summary judgment as to eight of the nine plaintiffs. Proceedings in the suit by the ninth plaintiff continued in the district court.

Appellants filed a notice of appeal from this judgment on September 18, 1985, and the Clerk of the Court docketed the appeal as Case No. 85-5981. On October 9, 1985, the Clerk of the Court issued an order

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which directed the appellants to show cause why the appeal should not be dismissed for lack of a final judgment under 28 U.S.C. Sec. 1291 (1982).

On October 16, appellants moved before the district court for entry of final-judgment certification under Fed.R.Civ.P. 54(b). Lilly did not oppose this motion. On the same day, the district court issued a Rule 54(b) certification. Appellants then timely submitted a copy of this order as part of their response to the order to show cause.

Counsel for appellants did not file a notice of appeal from this second order of the district court immediately. On December 9, 1985, well beyond 30 days [that Fed.R.App.P. 4(a)(1) allows for filing a notice of appeal] after the October 16 judgment, see Fed.R.App.P. 4(a)(1) ("In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal ... shall be filed ... within 30 days after the date of entry of the judgment or order appealed from"), but within the 30-day "grace period" Fed.R.App.P. 4(a)(5) allows for district courts to grant extensions of time to file, the appellants moved to enlarge the period available to appeal...

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