Reference no: EM133856146

Question

A patient domiciled in Virginia sued a surgeon domiciled in Maryland in a federal court in Virginia, alleging claims for malpractice. The surgeon moved to dismiss the action under FRCP 12(b)(6) for failure to state a claim. The court denied the motion and set discovery cutoff and trial dates. The surgeon immediately filed a notice of appeal of the ruling on the motion. Should the appellate court hear the merits of the surgeon's appeal? No, because the denial of the motion is neither a final judgment nor the kind of ruling appropriate for interlocutory appeal. No, because the district court's decision on the sufficiency of the complaint is final and unappealable. Yes, because if the appellate court disagrees with the trial judge, the lawsuit could be over. Yes, because the Due Process Clause would be violated if the surgeon had to go through discovery on what might be an insufficiently-pled complaint.