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


PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Lavenski R. Smith and Steven M. Colloton (UNPUBLISHED) [4004050] [12-2008]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-2008 ___________________________ 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Court for the District of Minnesota - Minneapolis ____________ Submitted: January 29, 2013 Filed: February 12, 2013 [Unpublished] ____________ Before MURPHY, SMITH, and COLLOTON, Circuit Judges. ____________ 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. ______________________________ -2- Appellate Case: 12-2008 Page: 2 Date Filed: 02/12/2013 Entry ID: 4004050

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