454 U.S. 927 (1981)

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U.S. Supreme Court


454 U.S. 927

No. 81-191

Supreme Court of the United States

October 13, 1981

On petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

The petition for writ of certiorari is denied.

Justice REHNQUIST, dissenting.

Because I believe that the Court of Appeals, CA7, 639 F.2d 394, in this case misapplied the Federal Rules of Appellate Procedure and this Court's decision in Thompson v. INS, 375 U.S. 384d 404 (1964), I dissent from the denial of certiorari.

In 1952, petitioner's mother took dienestrol, a synthetic estrogen, during her pregnancy with petitioner. In early

Page 454 U.S. 927 , 928

1974, petitioner's physician informed her that she had a vaginal cancer. Alleging that her mother's use of dienestrol was the proximate cause of her cancer, petitioner brought this diversity suit under Illinois tort law . After trial, the jury returned a verdict and awarded petitioner $800, 000 in damages.

Within 10 days of this judgment, respondent filed a motion for judgment notwithstanding the verdict pursuant to Federal Rule of Civil Procedure 50(b). The timely filing of this post-trial motion tolled the 30-day period in which to file a notice of appeal under Federal Rule of Appellate Procedure 4(a)(4). The District Court denied the motion on January 14, 1980. Thus, the 30-day period began to run anew, terminating on February 14, 1980. On February 4, 1980, respondent filed a motion styled as a "motion for reconsideration" of the January 14 order denying its motion for judgment notwithstanding the verdict. At a subsequent hearing, the District Court erroneously informed counsel that respondent's " motion to reconsider" tolled the time for appeal. Respondent did not move for, and the District Court did not grant, an extension of time within which to appeal under Federal Rule of Appellate Procedure 4(a)(5). The District Court denied the "motion to reconsider" on March 20, 1980. Respondent filed notice of appeal on April 21, 1980, 99 days subsequent to the order of January 14 denying respondent's motion for judgment notwithstanding the verdict.

A divided Court of Appeals held that it had jurisdiction to hear the appeal. Needham v. White Laboratories, Inc., 639 F.2d 394 (CA7 1981). After conceding that respondent's "motion to reconsider" did not toll the 30-day period that began to run when the Rule 50(b) motion was denied, the court held that this case fell within "the narrow exception recognized" in Thompson v. INS, supra. The court held that Thompson applied because respondent "should not be penalized for relying on the district court assurance that notice of appeal filed within thirty days of its [454 U.S. 927 , 929]

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