J.S., et al v. Saint Paul Academy, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Steven M. Colloton (UNPUBLISHED) [4004050] [12-2008]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2008
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J.S., K.S., C.S., and J.S., Minors
via Guardian and Parent Scott Selmer
lllllllllllllllllllll Plaintiffs - Appellants
v.
Saint Paul Academy and Summit
School, Bryn Roberts, Timothy Rodd,
Charles Zelle, Jill Romans, Cynthia
Richter, Timothy Elchert, Anne Fiedler,
Judy Johnson, Michael Thomford, and
Thomas Hobert
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: January 29, 2013
Filed: February 12, 2013
[Unpublished]
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Before MURPHY, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.

Appellate Case: 12-2008

Page: 1

Date Filed: 02/12/2013 Entry ID: 4004050

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.
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Appellate Case: 12-2008

Page: 2

Date Filed: 02/12/2013 Entry ID: 4004050