McMillian v. Sheraton Chicago Hotel & Towers

• Decision Date: 29 May 2009
• Docket Number: No. 07-3370.,07-3370.
• Citation: 567 F.3d 839
• Parties: Wilhemina C. McMILLIAN, Lillie Tucker, Clarence Pennywell, et al., Plaintiffs-Appellants, v. SHERATON CHICAGO HOTEL & TOWERS, Otis Elevator Company and Tishman Hotel Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

567 F.3d 839

Wilhemina C. McMILLIAN, Lillie Tucker, Clarence Pennywell, et al., Plaintiffs-Appellants, v. SHERATON CHICAGO HOTEL & TOWERS, Otis Elevator Company and Tishman Hotel Company, Defendants-Appellees.

No. 07-3370.

United States Court of Appeals, Seventh Circuit.

Argued October 30, 2008.

Decided May 29, 2009.

Michael B. King (argued), King & Associates, Jonesboro, GA, for Plaintiffs-Appellants.

Ian A. Stewart, Melissa A. Murphy-Petros, (argued), Wilson, Elser, Moskowitz, Edelman & Dicker, Perry C. Rocco (argued), Menges & Molzahn, Chicago, IL, for Defendants-Appellees.

Before EASTERBROOK, Chief Judge, and RIPPLE and TINDER, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiffs, Wilhemina McMillian, Lillie Tucker, Clarence Pennywell and Zerline Pennywell, brought this action seeking damages for injuries that they sustained when an escalator, located in the Sheraton Chicago Hotel & Towers ("Sheraton")¹ and maintained by Otis Elevator Company ("Otis"), allegedly malfunctioned. Prior to trial, the district court granted the defendants' motion in limine to exclude evidence of injuries sustained by others on the escalators at the Sheraton. The plaintiffs admitted that, without this evidence, they could not survive a motion for judgment as a matter of law, and, therefore, they agreed to a dismissal of their claims. The district court then entered final judgment on behalf of the defendants, and the plaintiffs filed this appeal. Because we believe that the plaintiffs have failed to establish that their claims meet the threshold jurisdictional amount, we vacate the judgment of the district court and remand the case with instructions that the district court dismiss the action for want of subject matter jurisdiction.

I BACKGROUND

A. Facts

Wilhemina McMillian, Lillie Tucker, Clarence Pennywell and Zerline Pennywell were guests at the Sheraton. On September 2, 2003, the Pennywells were riding escalator 12 when it "jerked," R.57 at 1; the malfunction caused Mr. Pennywell to fall and suffer a separated shoulder and a laceration to the scalp.² Ms. Pennywell did not fall and did not suffer any physical injuries. On September 4, 2003, Ms. McMillian and Ms. Tucker were riding escalator 8 when that escalator "jerked." R.57 at 1. As a result, Ms. McMillian fell and incurred a laceration to her leg and a sprained knee; Ms. Tucker suffered a meniscus tear in her knee, which did not require surgery.³

B. District Court Proceedings

The plaintiffs brought this diversity action against Sheraton, Tishman and Otis, seeking to recover damages for the injuries they sustained while riding the Sheraton escalators. Sheraton and Tishman later filed a cross-claim against Otis for indemnification and contribution based on a maintenance agreement in effect at the time of the plaintiffs' injuries. During discovery, the plaintiffs sought information about other escalator malfunctions; in response, Sheraton produced two incident reports. The first of these incidents occurred on September 1, 2003, when a guest, Mary Kemper, fell while riding either escalator 5 or 7; according to the report, Kemper was riding on the escalator when it suddenly stopped, and she tripped and fell. The other incident occurred on September 2, 2003; on that day, Carrie Redd fell while she was riding on escalator 7. According to witnesses, Redd did not properly put her foot on the escalator step and lost her balance.

Prior to trial, Otis moved in limine to exclude "any evidence of accidents which occurred on an escalator other than the subject escalators prior to the date of plaintiffs' accidents." R.57 at 5. Relying on Davlan v. Otis Elevator Co., 816 F.2d 287 (7th Cir.1987), the district court granted the motion. Following this ruling, the Pennywells made an "oral motion to dismiss defendant Otis Elevator Company from [their] case with prejudice." R.78.

The district court subsequently allowed Sheraton and Tishman to adopt the motion in limine previously filed by Otis, thus preventing the plaintiffs from introducing evidence of other accidents against Sheraton and Tishman.⁴ In its final-judgment order, the district court recounted the parties' actions and its rulings following the grant of the motion in limine:

6. The Pennywells' counsel announced that without the excluded evidence, he did not believe that he could survive a Motion For Judgment As a Matter of Law. Based on the above pre-trial rulings, and without prejudice to the parties' right to appeal those rulings, Clarence Pennywell, Zerline Pennywell, Sheraton and Tishman agreed that final judgment should be entered in favor of Sheraton and Tishman and against Clarence Pennywell and Zerline Pennywell on their claims. Initially, the remaining plaintiffs did not agree to pursue that course.

7. On May 15, 2007, I granted the joint motion of Sheraton Chicago Hotel & Towers and Tishman Hotel Company and Clarence Pennywell and Zerline Pennywell for entry of a Stipulated Order of Final Judgment on their claims....

8. On August 8, 2007, I held a status conference at which it was agreed by counsel for Ms. Tucker and Ms. McMillian that the evidentiary sufficiency of their case was dependent upon admissibility of the separate, earlier incidents that allegedly resulted in injury to the Pennywells. Although I thought my earlier ruling barring evidence of other incidents in the Pennywell trial pursuant to Davlan v. Otis Elevator Company, supra, also barred introduction in the Tucker/McMillian trial of the separate alleged injuries to the Pennywells, I ruled from the bench that the Pennywell ruling applied equally to the claims of McMillian and Tucker.

9. In a telephone conference with all counsel on 8/10/07, Mr. King, who is counsel for all the plaintiffs, then agreed that the case of Ms. McMillian and Ms. Tucker against Sheraton and Tishman could not survive a motion for judgment as a matter of law without the evidence of the earlier Pennywell incident, which occurred on a separate escalator.

9.[sic] All three counts of the cross-claim of Sheraton Hotels against Otis are dependent upon a verdict favorable to the plaintiffs....

10. A final judgment in favor of Tishman Hotel Corporation and Sheraton Chicago Hotel & Towers and against all plaintiffs on all counts of the complaint against them also resolves the cross-claim of Sheraton Chicago Hotel & Towers against Otis Elevator Company.

11. Accordingly, with the agreement of the parties, I direct the entry of final judgment in favor of Sheraton Chicago Hotel & Towers, Tishman Hotel Corporation, and Otis Elevator Company on the claims of all plaintiffs against them, and I direct the entry of final judgment in favor of Otis Elevator Company and against Sheraton Chicago Hotel & Towers on its cross-claim against Otis Elevator Company.

R.109 at 2-4.

II DISCUSSION

The plaintiffs raise the single issue of whether the district court abused its discretion in excluding the evidence of other escalator accidents. However, during oral argument, we became concerned that the consensual nature of the district court's judgment may have deprived us of jurisdiction to consider the plaintiffs' appeal. We also had concerns that the jurisdictional amount in controversy had not been satisfied.⁵ We asked the parties to file supplemental memoranda addressing these issues. We turn first to these jurisdictional matters.

A.

In a case of this nature, our appellate jurisdiction must be predicated on a final judgment in the district court. See 28 U.S.C. § 1291 ("The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States...."). A final judgment, for purposes of section 1291, is one 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, 57 L.Ed.2d 351 (1978).⁶ In addition to a final disposition in the district court, there also must be a continuing, live controversy between the parties for us to resolve on appeal. Timms on Behalf of Timms v. Metro. Sch. Dist. of Wabash County, Ind., 722 F.2d 1310, 1315 (7th Cir.1983) ("It is settled that our jurisdiction requires `an actual controversy ... to exist at all stages of appellate review.'" (quoting Cent. Soya Co. v. Consol. Rail Corp., 614 F.2d 684, 687 (7th Cir.1980))).

We believe that the record makes clear that the district court's dismissal of the plaintiffs' claims anticipated no further proceedings and put an end to all matters before the court. As recounted in the district court's order, the Pennywells moved to dismiss their claims against Otis with prejudice following the district court's grant of Otis' motion in limine with respect to other escalator incidents. After the district court extended this ruling to bar similar evidence against Sheraton and Tishman, the Pennywells, and later Ms. Tucker and Ms. McMillian, agreed that they could not survive a motion for judgment as a matter of law. Consequently, the court dismissed all of the remaining claims and entered final judgment on behalf of the defendants. Although the last order of the court does not use the terms "with prejudice" explicitly, it is clear that the parties' desire to end the litigation was based on the extension of the evidentiary ruling which first prompted the Pennywells to move to dismiss Otis "with prejudice." This is sufficient to create a final judgment for purposes of section 1291. See Mother & Father v. Cassidy, 338 F.3d 704, 707 (7th Cir.2003) (stating that, when the parties "do not seriously contest the fact that the district court has dismissed all claims of all parties, and that the federal claims have now been dismissed with prejudice[,][t]hat is enough to create a final judgment for purposes of appellate jurisdiction under 28 U.S.C. § 1291"). Thus, the district court's judgment is final.

The district court's final order not only makes clear that the disposition was...