Suzanne L. Robinson, and Constance Robinson v. Parke-Davis and Company

Fourth Circuit

Suzanne L. Robinson, and Constance Robinson v. Parke-Davis and Company

685 F.2d 912, 34 Fed. R. Serv. 2d 1009, 1982 U.S. App. LEXIS 16528

CourtCourt of Appeals for the Fourth Circuit

DecidedAugust 17, 1982

Docket81-1819

StatusPublished

Cited by43 cases

This text of 685 F.2d 912 (Suzanne L. Robinson, and Constance Robinson v. Parke-Davis and Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Suzanne L. Robinson, and Constance Robinson v. Parke-Davis and Company, 685 F.2d 912, 34 Fed. R. Serv. 2d 1009, 1982 U.S. App. LEXIS 16528 (4th Cir. 1982).

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Opinion

PER CURIAM:

This action was instituted by a mother and her daughter for injuries to the daughter ostensibly resulting from the mother’s use of the defendant’s drug Norlutin during her pregnancy. The two plaintiffs asserted five causes of action in their complaint. In response to a motion by the defendant, the district court dismissed all claims of the mother after concluding that they were barred by the applicable Virginia statute of limitations. Va.Code § 8.01-243(B). The court also dismissed two of the five causes of action of the daughter. The mother appealed her dismissal, while the daughter’s case continued through discovery.

While the district court’s order appears to end the mother’s litigation, the court failed to make “an express determination that there is no just reason for delay and ... an express direction for the entry of judgment,” as provided for in Fed.R.Civ.Pro. 54(b). Because the district court’s order adjudicated “fewer than all the claims or the rights and liabilities of fewer than all the parties”, the order was still subject to revision by the district court and would be appealable only upon an express Rule 54(b) certification. E.g., Schnur & Co. v. McDonald, 328 F.2d 103 (4th Cir. 1964); Wright & Miller, 10 Federal Practice & Procedure § 2660 (1973). Without such certification, this court does not have jurisdiction to hear the appeal. 28 U.S.C. § 1291.

We express no opinion as to whether or not the appeal should be certified under FRCP 54(b) should the appellant make proper application to the district court following the dismissal of her appeal.

Accordingly, the appeal is

DISMISSED.

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PER CURIAM:

This action was instituted by a mother and her daughter for injuries to the daughter ostensibly resulting from the mother’s use of the defendant’s drug Norlutin during her pregnancy. The two plaintiffs asserted five causes of action in their complaint. In response to a motion by the defendant, the district court dismissed all claims of the mother after concluding that they were barred by the applicable Virginia statute of limitations. Va.Code § 8.01-243(B). The court also dismissed two of the five causes of action of the daughter. The mother appealed her dismissal, while the daughter’s case continued through discovery.

While the district court’s order appears to end the mother’s litigation, the court failed to make “an express determination that there is no just reason for delay and ... an express direction for the entry of judgment,” as provided for in Fed.R.Civ.Pro. 54(b). Because the district court’s order adjudicated “fewer than all the claims or the rights and liabilities of fewer than all the parties”, the order was still subject to revision by the district court and would be appealable only upon an express Rule 54(b) certification. E.g., Schnur & Co. v. McDonald, 328 F.2d 103 (4th Cir. 1964); Wright & Miller, 10 Federal Practice & Procedure § 2660 (1973). Without such certification, this court does not have jurisdiction to hear the appeal. 28 U.S.C. § 1291.

We express no opinion as to whether or not the appeal should be certified under FRCP 54(b) should the appellant make proper application to the district court following the dismissal of her appeal.

Accordingly, the appeal is

DISMISSED.

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Bluebook (online)

685 F.2d 912, 34 Fed. R. Serv. 2d 1009, 1982 U.S. App. LEXIS 16528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suzanne-l-robinson-and-constance-robinson-v-parke-davis-and-company-ca4-1982.

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