DONOVAN v. PENN SHIPPING CO., INC., et al.

Supreme Court of the United States1977-02-22No. No. 76-613

429 U.S. 64851 L. Ed. 2d 11297 S. Ct. 8351977 U.S. LEXIS 12SCDB 1976-051

Summary · law.co

Holding. A plaintiff in federal court who accepts a remittitur may not appeal to challenge the trial court's verdict reduction, and the Court of Appeals correctly dismissed the appeal. The judgment is affirmed.

A seaman injured while working aboard a ship sued his employer under the Jones Act and won a $90,000 jury verdict. The trial court reduced this award by ordering a new trial unless the plaintiff agreed to remit $25,000, leaving $65,000. The plaintiff accepted the reduced amount while purporting to reserve his right to appeal and to protest the remittitur. He then sought appellate review to challenge the trial court's reduction and reclaim the original verdict amount.

The Court addressed whether a plaintiff who accepts a reduced verdict can later appeal to challenge that reduction. The Court held that longstanding federal law prohibits such appeals. A plaintiff who accepts a remittitur—even one framed as accepted "under protest"—forfeits the right to appeal the trial court's decision to reduce the verdict. This rule applies uniformly in federal court regardless of whether the underlying claim arises from state or federal law.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a plaintiff can appeal a remittitur order after accepting a reduced verdict
Whether accepting a remittitur 'under protest' preserves appellate rights
Whether federal or state law governs the appealability of remittitur orders in diversity cases

Procedural posture

The plaintiff petitioned for Supreme Court review of the Court of Appeals' dismissal of his appeal from the trial court's conditional new trial order based on an allegedly excessive verdict.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Per Curiam.

The petitioner, while employed by the respondents as a seaman on the SS Penn Sailor, slipped on wet paint, injuring his right wrist and elbow. He sued the respondents under the Jones Act, 46 U. S. C. § 688, and obtained a $90,000 verdict at his juiy trial. The respondents moved to set aside the verdict as excessive. Fed. Rules Civ. Proc. 50, 59. The District Court granted the motion, and ordered a new trial on damages unless the petitioner agreed to remit $25,000 of the $90,000 award.

After some time the petitioner submitted to the District Court a proposed order stating that he accepted “under protest” the reduced verdict of $65,000, but reserving nonetheless “his right to appeal therefrom.” This language was adopted by the District Court in entering a judgment for the petitioner in the amount of $65,000.

The petitioner sought appellate review of the District Court’s decision to order a conditional new trial. In so doing he asked the Court of Appeals for the Second Circuit to discard the settled rule that a plaintiff who has accepted a remittitur may not appeal to seek reinstatement of the original verdict. The Court of Appeals refused the petitioner’s invitation, and dismissed the appeal. 536 F. 2d 536.

The Court of Appeals properly followed our precedents in holding that a plaintiff cannot “protest” a remittitur he has accepted in an attempt to open it to challenge on appeal. A line of decisions stretching back to 1889 has firmly established that a plaintiff cannot appeal the propriety of a remittitur order to which he has agreed. Kennon v. Gilmer, 131 U. S. 22, 29-30 (1889); Lewis v. Wilson, 151 U. S. 551, 554-555 (1894); Koenigsberger v. Richmond Silver Mining Co., 158 U. S. 41, 52 (1895); Woodworth v. Chesbrough, 244 U. S. 79, 82 (1917).

There are decisions in the Federal Courts of Appeals that depart from these unbroken precedents. Those decisions held or intimated that a plaintiff who accepts a remittitur “under protest” may challenge on appeal the correctness of the remittitur order. See, e. g., Bonn v. Puerto Rico Int’l Airlines, Inc., 518 F. 2d 89, 94 (CA1 1975); United States v. 1160.96 Acres of Land, 432 F. 2d 910 (CA5 1970); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F. 2d 1033 (CA5 1970) ; Steinberg v. Indemnity Ins. Co. of North America, 364 F. 2d 266 (CA5 1966) ; Delta Engineering Corp. v. Scott, 322 F. 2d 11, 15 (CA5 1963). Other decisions have suggested that when entertaining cases pursuant to its diversity jurisdiction, a federal court should look to state practice to determine whether such an appeal is permitted. See Burnett v. Coleman Co., 507 F. 2d 726 (CA6 1974); Manning v. Altec, Inc., 488 F. 2d 127 (CA6 1973); Mooney v. Henderson Portion Pack Co., 334 F. 2d 7 (CA6 1964).

The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is, however, a matter of federal law, see Hanna v. Plumer, 380 U. S. 460, 466-469 (1965); Byrd v. Blue Ridge Rural Electric Coop., 356 U. S. 525 (1958), and that law has always prohibited appeals in the situation at bar. The Court of Appeals for the Second Circuit correctly adhered to the consistent rule established by this Court’s decisions. In order to clarify whatever uncertainty might exist, we now reaffirm the longstanding rule that a plaintiff in federal court, whether prosecuting a.state or federal cause of action, may not appeal from a remittitur order he has accepted.

The petition for a writ of certiorari is granted, and the judgment is affirmed.

So ordered.

The Chief Justice and Mr. Justice Blackmun would grant the petition for certiorari but would have the case argued and given plenary consideration rather than disposed of summarily.