J.S. v. Saint Paul Academy & Summit School

497 F. App'x 694

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 12, 2013
• Docket: 12-2008
• Status: Unpublished

Opinion

PER CURIAM.

Scott Selmer, on behalf of his four children (plaintiffs), purports to appeal the district court’s dismissal of their civil complaint. Plaintiffs’ July 2011 amended complaint named St. Paul Academy and Summit School (SPA), several individuals who were SPA employees or trustees (the SPA defendants), as well as Paul Applebaum, a parent of two children at SPA. The SPA defendants moved to dismiss; Applebaum was not a party to the motion. Applebaum neither answered nor filed any motion. The district court granted the SPA defendants’ motion to dismiss.

As the district court did not address plaintiffs’ claims against Applebaum, those claims remain pending, and this appeal is premature. See Bullock v. Baptist Mem’l Hosp., 817 F.2d 58, 59 (8th Cir.1987) (order dismissing complaint as to fewer than all defendants is not “final order”); Ruffolo v. Oppenheimer & Co., Inc., 949 F.2d 33, 34-36 (2d Cir.1991) (order granting one defendant’s motion to dismiss was not final appealable decision where other defendant neither answered nor moved to dismiss); see also Huggins v. FedEx Ground Package Sys., Inc., 566 F.3d 771, 773 (8th Cir.2009) (where it appears jurisdiction is lacking, appellate courts are obligated to consider sua sponte jurisdictional issues). Accordingly, we dismiss this appeal and remand to the district court for consideration of plaintiffs’ claims against Applebaum.