Appeals – Certification – Wrongful death

Where a U.S. District Court judge certified the dismissal of a wrongful death cause of action for immediate appellate review under Rule 54(b) of the Federal Rules of Civil Procedure, the appeal must be dismissed because unadjudicated causes of action for negligence, premises liability, survivorship and loss of consortium arise from the same acts or omissions as the adjudicated wrongful death cause of action.

“Police officers shot and killed John H. Crawford, III inside an Ohio Wal-Mart store. The incident prompted Crawford’s estate to sue the retailer under several theories, including wrongful death. The district court granted Wal-Mart summary judgment on the wrongful death count, but denied the company summary judgment as to the others. The district court then certified its dismissal of the wrongful death cause of action for immediate appellate review under Rule 54(b) of the Federal Rules of Civil Procedure. Concluding that certification was improper, we dismiss the appeal for lack of jurisdiction.

“Plaintiffs contend that the district court’s entry of final judgment here was appropriate because the wrongful death cause of action was a distinct claim for purposes of Rule 54(b).

“Plaintiffs’ unadjudicated causes of action for negligence, premises liability, survivorship, and loss of consortium arise from the same acts or omissions as their adjudicated wrongful death cause of action. For each, the same operative facts control: Wal-Mart’s alleged negligence in its pellet gun display policy as well as its failure to secure the gun and warn Crawford, leading to his death. The district court entered final judgment on the wrongful death cause of action. Yet the same basic set of factsWal-Mart’s alleged negligence underlies plaintiffs’ unadjudicated causes of action remaining for trial. In Rule 54(b) parlance, each cause of action arises out of the same claim. Accordingly, Rule 54(b) certification was improper.”

Sherrod v. Wal-Mart Stores Inc.; MiLW 01-108042, 9 pages; U.S. Court of Appeals for the Sixth Circuit; Readler, J., joined by McKeague, J., Davis, J.; on appeal from the U.S. District Court for the Southern District of Ohio at Dayton; Warren N. Sams for appellants; D. Patrick Kasson for appellees.

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