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Estate of Storm v. Northwest Iowa Hospital Corp.: APPELLATE PROCEDURE - district court certification for interlocutory appeal not sufficent; also must file in appellate court within 10 days; jurisdictional

1The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
United States Court of Appeals
No. 07-1827
Estate of Noah Joe Storm; Toni *
Scadden; Bill Storm, **
Appellants, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Northwest Iowa Hospital Corporation; *
John Doe, #1 Supervising Physician; * [PUBLISHED]
Siouxland Medical Education *
Foundation, Inc.; John Doe, #2 Senior *
Resident for Siouxland Medical *
Education Foundation; John Doe, #3 *
Attending Physician for Siouxland *
Medical Education Foundation; *
Thaddeus Vernon; Jeffrey Zoelle; *
The Crittenton Center, *
Appellees. *
Submitted: January 18, 2008
Filed: November 28, 2008
Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG,1 Judge.
2The Honorable Donald E. OBrien, United States District Judge for the
Northern District of Iowa.
This appeal arises from a complaint filed in the district court by the Estate of
Noah Joe Storm, alleging that negligence of the appellees caused damages to the
Estate. According to the complaint, the administrator of the Estate, Toni Scadden,
gave birth to a stillborn baby, who was given the name Noah Joe Storm. The
complaint alleges that non-negligent conduct by the appellees would have resulted in
the survival and live birth of Noah Joe Storm, that negligence by the defendants was
a proximate cause of damages sustained by the Estate, and that causes of action
alleged by Noah Joe Storm survive his death pursuant to Iowa Code 611.20, the
Iowa survival statute.
Applying Iowa law, the district court2 concluded that according to decisions of
the Supreme Court of Iowa, an unborn fetus does not have a cause of action for
wrongful death under Iowa Code 611.20. See Dunn v. Rose Way, Inc., 333 N.W.2d
830, 831 (Iowa 1983); Weitl v. Moes, 311 N.W.2d 259, 272-73 (Iowa 1981). In an
order filed on March 7, 2007, the court denied the plaintiffs request to certify the
question to the state supreme court, because it believed that the issue was well
settled under Iowa law, and that other relevant factors did not justify certification.
On April 5, 2007, the court granted the plaintiffs motion to amend the order of March
7. In the April 5 order, pursuant to 28 U.S.C. 1292(b), the district court certified for
interlocutory appeal to this court the question whether the district court erred by not
granting the plaintiffs request to certify an issue to the Supreme Court of Iowa. The
appellant Estate has filed a brief in this court arguing that the district court abused its
discretion by failing to grant certification.
We do not reach the merits of the appeal, because we conclude that the appeal
must be dismissed for lack of jurisdiction. We are obligated to examine our
jurisdiction, even where no party has raised the issue. Dieser v. Contl Cas. Co., 440
F.3d 920, 923 (8th Cir. 2006).
The appellant asserts that we have jurisdiction over the appeal pursuant to 28
U.S.C. 1292(b), because the district court certified a question for interlocutory
appeal pursuant to that statute in its order of April 5, 2007. The district courts
certification alone, however, is insufficient to confer jurisdiction on the court of
appeals. Rather, the court of appeals may, in its discretion, permit an appeal to be
taken from the district courts order if application is made to it within ten days after
entry of the order. 28 U.S.C. 1292(b) (emphasis added). The corresponding
federal rule of appellate procedure provides that [t]o request permission to appeal
when an appeal is within the court of appeals discretion, a party must file a petition
for permission to appeal. Fed. R. App. P. 5(a)(1). The petition must be filed with
the circuit clerk with proof of service on all other parties to the district-court action.
Id. The rules further state that the petition must be filed within the time specified by
the statute authorizing the appeal, Fed. R. App. P. 5(a)(2), and expressly prohibit the
court of appeals from extending the time to file. Fed. R. App. P. 26(b)(1). An
appellants failure to file an application for permission to appeal in this court within
ten days of the district courts certification is a jurisdictional defect under 1292(b).
Consul Gen. of Republic of Indonesia ex rel. Salom v. Bills Rentals, Inc., 251 F.3d
718, 720 (8th Cir. 2001); Hanson v. Hunt Oil Co., 488 F.2d 70, 72 (8th Cir. 1973) (per
curiam); see also Aucoin v. Matador Servs., Inc., 740 F.2d 1180, 1181 (5th Cir. 1985).
The appellant never filed with the clerk of this court an application for
permission to appeal. Rather, on April 5, 2007, the appellant filed with the clerk of
the district court a document captioned, Plaintiffs Notice of Interlocutory Appeal.
This filing does not comply with the requirement of 1292(b) that application be
made to the court of appeals within ten days of the district courts order. Nor does it
satisfy the corresponding requirements of Rule 5(a)(1) and (2) that a petition be filed
with the clerk of the circuit court within the time specified by statute. Main Drug, Inc.
v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1230 (11th Cir. 2007). Nor, for that
matter, does the notice of appeal filed in the district court include the contents of a
petition required by Rule 5(b)(1), or give opportunity for an answer from the opposing
party as contemplated by Rule 5(b)(2). See Main Drug, 475 F.3d at 1231. Within the
ten day period, the appellant filed no other document in this court that might serve as
the functional equivalent of an application for permission to appeal. Cf. Casey v. Long
Island R.R. Co., 406 F.3d 142, 146 (2d Cir. 2005) (holding that appellate brief filed
within ten days after district courts certification order was the functional equivalent
of a petition for leave to appeal).
For these reasons, we have no jurisdiction to entertain the appellants
interlocutory appeal, and the appeal is therefore dismissed.


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Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

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  your life?


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  professionals have you seen?


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  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



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