Richard A. Denholm v. Houghton Mifflin Company and the Riverside Publishing Company

Plaintiff-Appellant Richard Denholm (“Denholm”) sued his publisher, Houghton Mifflin Co. (“Houghton Mifflin”), and its wholly-owned subsidiary, Riverside Publishing Co. (“Riverside”) (collectively “Defendants-Appellees”), in Los Angeles Superior Court for tortious breach of contract and fraud arising out of a Letter Agreement to develop and publish a mathematics program for kindergarten through eighth grade. Appellees properly removed the case to the United States District Court for the Central District of California pursuant to 28 U.S.C. §§ 1441 & 1446, which had proper diversity jurisdiction under 28 U.S.C. § 1332 (a).

The district court dismissed the fraud claim on judgment on the pleadings, as it was filed beyond the applicable three-year California statute of limitations for fraud claims. Cal.Civ.Proc.Code § 338(4). The court later dismissed the tortious breach of contract claim on summary judgment, as the parties did not have a special relationship as required by California law. However, the court allowed Denholm to proceed on an amended complaint alleging ordinary breach of contract claim.

Prior to trial, the court granted appel-lees’ motion in limine, excluding the…

dissenting in part:

Although I concur in Parts II and III of the majority opinion as well as much of Part I, I must dissent from the conclusion in Part I that Denholm may not appeal the pretrial order excluding evidence regarding lost royalties and loss of reputation because he accepted remittitur. The majority today adopts a sweeping and unnecessarily mechanistic view of which issues on appeal are sufficiently related to a remittitur order to trigger application of the longstanding rule that a plaintiff in federal court who accepts an order of remittitur may not appeal that order. See Donovan v. Penn Shipping Co., 429 U.S. 648, 650 , 97 S.Ct. 835, 837 , 51 L.Ed.2d 112 (1977) (per curiam). Persuaded by the Fifth Circuit’s decision in Lanier v. Sallas, 777 F.2d 321, 325 (5th Cir.1985), the majority opinion embraces an analysis that focuses on “whether each issue on appeal is a separate and distinct cause of action from the subject of the remittitur.” Majority Opinion at 360 (emphasis added). Unfortunately, this analysis oversimplifies both the Lanier decision and the nature of the events which occurred below in the instant case, leading to an absurd result.

I

Contrary to what…

912 F.2d 357 Richard A. DENHOLM, Plaintiff-Appellant, v. HOUGHTON MIFFLIN COMPANY and the Riverside Publishing Company, Defendants-Appellees. No. 87-5987. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 6, 1989. Decided Aug. 27, 1990. Stanley Sklute, Gerald Goldfarb, Los Angeles, Cal., for plaintiff-appellant. Michael H. Diamond, Harriet S. Posner, Laura R. Medinnus, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, Cal., for defendants-appellees. Appeal from the United States District Court for the Central District of California. Before TANG, HALL and BRUNETTI, Circuit Judges. BRUNETTI, Circuit Judge: 1 Plaintiff-Appellant Richard Denholm ("Denholm") sued his publisher, Houghton Mifflin Co. ("Houghton Mifflin"), and its wholly-owned subsidiary, Riverside Publishing Co. ("Riverside") (collectively "Defendants-Appellees"), in Los Angeles Superior Court for tortious breach of contract and fraud arising out of a Letter Agreement to develop and publish a mathematics program for kindergarten through eighth grade. Appellees properly removed the case to the United States District Court for the Central District of California pursuant to 28 U.S.C. Secs. 1441…