## Facts

- Donovan, a seaman employed by Penn Shipping Co., slipped on wet paint aboard the S.S. *Penn Sailor* and injured his right wrist and elbow.
- Donovan sued under the Jones Act and obtained a $90,000 jury verdict.
- Penn Shipping moved under Federal Rules of Civil Procedure 50 and 59 to set aside the verdict as excessive.
- The district court ordered a new trial on damages unless Donovan remitted $25,000, reducing the award to $65,000.
- Donovan accepted the reduced amount “under protest” and attempted to reserve a right to appeal; the district court entered judgment for $65,000.
- Donovan appealed seeking reinstatement of the $90,000 verdict; the Second Circuit dismissed the appeal based on the rule barring appeal after acceptance of remittitur.

## Issues

1. Whether a plaintiff who accepts a remittitur in federal court may appeal the remittitur order to seek reinstatement of the original jury verdict, when the acceptance is “under protest” and purports to reserve appellate rights.

## Decision

- The Supreme Court affirmed the Second Circuit’s dismissal of the appeal in a per curiam decision.
- A plaintiff in federal court may not appeal a remittitur order the plaintiff has accepted, regardless of whether the claim arises under state or federal law.
- Acceptance “under protest” and inclusion of language reserving appellate rights does not preserve the ability to appeal to restore the original verdict.

## Legal Principles

- Acceptance of a remittitur constitutes an election to take the reduced judgment in lieu of a new trial and bars appellate review seeking reinstatement of the original award.
- A plaintiff cannot avoid the bar by accepting the remittitur “under protest” or by attempting to reserve a right to appeal in the judgment.
- The rule applies in federal court as a matter of federal procedural practice, independent of the substantive source of the cause of action.

## Conclusion

Because Donovan accepted the remittitur rather than proceed to a new trial on damages, he could not appeal to challenge the reduction and seek reinstatement of the jury’s original $90,000 verdict, even though he purported to accept the reduced judgment under protest and with a reservation of appellate rights.


Donovan v. Penn Shipping Co., 429 U.S. 648 (1977)