Flynn v. Merrick

• Decision Date: 31 October 1985
• Docket Number: 85-2681,Nos. 85-2587,s. 85-2587
• Citation: 776 F.2d 184
• Parties: Gerald T. FLYNN, et al., Plaintiffs-Appellants, Cross-Appellees, v. Stephen M. MERRICK, Allen Buhler, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 184

776 F.2d 184

3 Fed.R.Serv.3d 1167

Gerald T. FLYNN, et al., Plaintiffs-Appellants, Cross-Appellees, v. Stephen M. MERRICK, Allen Buhler, et al Defendants-Appellees, Cross-Appellants.

Nos. 85-2587, 85-2681.

United States Court of Appeals Seventh Circuit.

Submitted Oct. 10, 1985.

Decided Oct. 31, 1985.

Gerald P. Boyle, P.C. and Roland J. Steinle, III, Milwaukee, Wis., for plaintiffs-appellants, cross-appellees.

Douglas J. Carroll, Arnold, Murray, O'Neill & Schimmel, Dennis J. Christensen, Albert, Jude & Van Remmen, S.C., Thomas R. Schrimpf, Kluwin, Dunphy & Hankin, Milwaukee, Wis., for defendants-appellees, cross-appellants.

Before BAUER, ESCHBACH and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiffs, five individuals and a corporation, in 1982 brought suit in a federal district court against several corporations and individuals (some employed by the State of Wisconsin), alleging securities fraud in violation of various statutes and the due process clause of the Fourteenth Amendment. In August of this year, on motion of the defendants, the district judge dismissed the five individual plaintiffs from the case, and also dismissed the due process claims against all the defendants and the remaining plaintiff's RICO claims against some of the defendants. The district court did not certify its order for an immediate appeal under either Rule 54(b) of the Federal Rules of Civil Procedure or 28 U.S.C. Sec. 1292(b); nor did the plaintiffs ask for such certification. Instead they filed a notice of appeal, and when we asked them to show cause why the appeal should not be dismissed because the judge's order was an unappealable interlocutory order they responded by citing us Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964), and Nelson v. Heyne, 491 F.2d 352 (7th Cir.1974).

In Gillespie the plaintiff, the mother of a seaman who had been killed in an accident while working for the defendant, brought suit on her own behalf and that of her son's brother and sister, seeking damages on theories of negligence and unseaworthiness. The district court dismissed all claims on behalf of the brother and sister, and the plaintiff's claim of unseaworthiness, leaving just her with a claim, and with just a negligence claim, and a limited one at that, because the district court also dismissed so much of that claim as sought damages for her son's pain and suffering. She appealed the dismissal, and the court of appeals affirmed on the merits. She then sought and was granted certiorari by the Supreme Court. The Supreme Court held that the court of appeals had had appellate jurisdiction of the district court's order, even though there was no certification under Rule 54(b) or section 1292(b), see 379 U.S. at 152-54, 85 S.Ct. at 310-12, and went on to uphold the court of appeals' decision on the merits, except with regard to the striking of the plaintiff's claim for damages for pain and suffering. In Nelson v. Heyne we read Gillespie to hold that "formal certification by a district judge is not always required in a marginally final case," 491 F.2d at 354 n. 2, but the facts were completely different from those of Gillespie or the present case.

It is apparent that Gillespie must be given a narrow interpretation if the structure of appellate review established by Congress is to be respected. What seems to have been the controlling consideration in the Supreme Court's mind, see 379 U.S. at 153, 85 S.Ct. at 311, is that the court of appeals had in fact assumed jurisdiction (though it would seem improperly) and decided the case on the...