## Facts

- Eleanor Dilly worked at a soda fountain in an S.S. Kresge store.
- An assistant manager became upset when told there was no hot chocolate, grabbed and shook her, and spoke angrily.
- Dilly alleged the incident caused a neck injury; the assistant manager claimed he was joking.
- Bernard and Eleanor Dilly sued Kresge; Bernard asserted derivative claims.
- The parties filed cross-motions for summary judgment on liability.
- The district court granted summary judgment for plaintiffs on liability, but set a later hearing to determine whether any damages existed and, if so, their amount.
- Kresge filed a Rule 59 motion to set aside the liability ruling; the district court denied it.
- Kresge filed a notice of appeal before damages were determined.

## Issues

1. Whether an order granting summary judgment to plaintiffs on liability while reserving the existence and amount of damages is a “final decision” appealable under 28 U.S.C. § 1291.
2. Whether the appeal was otherwise properly before the court as an interlocutory appeal under 28 U.S.C. § 1292(b).

## Decision

- The Fourth Circuit dismissed the appeal for lack of appellate jurisdiction.
- The court held the liability-only summary judgment was not a final decision under § 1291 because damages remained for adjudication.
- The court held no interlocutory appeal had been properly perfected under § 1292(b).

## Legal Principles

- A “final decision” under 28 U.S.C. § 1291 is one that ends the litigation on the merits and leaves nothing for the district court to do except execute the judgment.
- An order resolving liability but leaving the existence and amount of damages for later determination is not final and is not immediately appealable under § 1291.
- Absent a final judgment, appellate jurisdiction requires a valid statutory basis for interlocutory review, such as compliance with § 1292(b)’s certification and permission process.

## Conclusion

Because the district court’s order determined liability but left damages unresolved and the case was not certified for interlocutory review, the Fourth Circuit lacked jurisdiction and dismissed the appeal.


Dilly v. S.S. Kresge Co., 606 F.2d 62 (4th Cir. 1979)