Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure Civil 2d, § 1497 at 95 (1990). See also Kuba v. Ristow Trucking Co., Inc., 811 F.2d 1053, 1055 (7th Cir. 1987); Donnelly v. Yellow Freight System, Inc., 874 F.2d 402, 410 (7th Cir. 1989). However, in order to benefit from Rule 15(c)'s relation back doctrine, the original complaint must have been timely filed.

Accordingly, the drug-use question fell outside of the scope of the issues of fact preserved for trial, and the district court properly could have excluded the question. Because the district court could have excluded the question does not necessarily mean it abused its discretion by not excluding it. Kuba v. Ristow Trucking Co., 811 F.2d 1053, 1055 (7th Cir. 1987). In this case, as the court noted, Fancy Colours had posed the question in front of the jury before Van Stan could object.

His payment of those costs thus did not moot his pending challenge to the district court's order. See Heasley v. Belden Blake Corp., 2 F.3d 1249, 1253 n. 4 (3d Cir. 1993); Stanton Road Assoc. v. Lohrey Enter., 984 F.2d 1015, 1020 (9th Cir. 1993) ("The fact that payments have been made in satisfaction of a money judgment does not foreclose an appeal."); see also Kuba v. Ristow Trucking Co., 811 F.2d 1053, 1055 (7th Cir. 1987) (acceptance of $250,000 check did not moot appeal seeking larger amount where there was no indication that accepted check represented a settlement); 13A Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d sec. 3533.2, at 248 (2d ed. 1984) ("Payment and acceptance of the judgment do not moot the appeal unless the parties intended to settle."). III.

Having failed to achieve its ultimate goal, it was entitled to take what they could and appeal. "A party may accept what is securely his and appeal seeking more." Kuba v. Ristow Trucking Co., 811 F.2d 1053, 1055 (7th Cir. 1987). This view of our jurisdiction is supported by Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), in which the Supreme Court allowed a plaintiff who fully prevailed on the merits of his suit to appeal the denial of class certification. While acknowledging the general rule that "only a party aggrieved by a judgment or order of a district court may exercise the statutory right to appeal therefrom," id. at 333, 100 S.Ct. at 1171, the Court stated: "In an appropriate case, appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who has prevailed on the merits, so long as that party retains a stake in the appeal satisfying the requirements of Art. III."

See Appellants' Reply Brief at 7 (quoting Illinois Senate Debate, June 22, 1982 ("Part of the problem is people are not aware that there is underinsurance . . . and this obviously is going to make them aware of it because the law provides that they have to have uninsured motorists and included within that policy now if . . . if this passes, will be this underinsurance motorist coverage as well. So everybody would be aware of it and the public will be better served and protected. . . .") (Statement of Sen. D'Arco)). It is precisely this type of case that is appropriate for certification under Circuit Rule 52. See, e.g., Shirkey v. Eli Lilly Co., 852 F.2d 227, 235 (7th Cir. 1988); Kuba v. Ristow Trucking Co., 811 F.2d 1053 (7th Cir. 1987). Certification to the Illinois Supreme Court is proper when there are involved in any proceeding before [the Seventh Circuit] questions as to the law of this State, which may be determinative of the said cause, and there are no controlling precedents in the decisions of this court. . . .

Wis.Stat. §§ 821.01-.12 (1985-86). Because this is one of the unusual cases in which existing state authorities leave us without adequate guidance, see Kuba v. Ristow Trucking Co., 811 F.2d 1053 (7th Cir. 1987), we will certify the questions raised by Shirkey's strict liability objections to the Wisconsin Supreme Court. III.

Because the plaintiff failed to properly present to the district court in a lawyerlike fashion the arguments supporting his second theory, he did not disclose to the district court in the pre-trial conference the theory on which he now attempts to rely. Accord as to the final pretrial order (citing Erff), Kuba v. Ristow Trucking Co., 811 F.2d 1053, 1055 (7th Cir. 1987) ("The observation that the claim . . . is not in the pretrial order would have been sufficient justification for the district court to decline to entertain it"). Nor can the United States' originally-taken position, specifically confirming the applicability of the APA § 553 notice requirements to Reg. (f)(4), be dismissed as a mere oversight.

Andis, 489 N.E.2d at 81. See also Kuba v. Ristow Trucking Co., Inc., 811 F.2d 1053, 1056 (7th Cir. 1987) (citing Andis for the proposition that Indiana's wrongful death statute is to be strictly construed and that damages are to be strictly limited to actual damages). Mrs. Heinhold is not prohibitied from seeking the expected earnings of her deceased husband, nor is she precluded from seeking the benefit of any services he rendered directly to her.

However, even if the complaint is deemed amended such practice is allowed under Fed.R.Civ.P. 15(b) and the amendment would relate back to the original complaint. Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 126 (2d Cir. 1994) (a claim on a different legal theory would relate back to the original complaint), Kuba v. Ristow Trucking Co., 811 F.2d 1053, 1055 (7th Cir. 1987) ("Claims explicitly addressed by the parties and court are treated as added automatically to the pleadings and other necessary documents"). The purpose of Fed.R.Civ.P. 15(b) is to "align the pleadings to conform to the issues actually tried."

Complaint amendments have also been allowed to "relate back" to the complaint filing when they assert alternative grounds for recovery omitted from the original pleadings. See Kuba v. Ristow Trucking Co., Inc., 811 F.2d 1053, 1055 (7th Cir. 1987). However, "relation back" of amendments is not allowed to further abusive purposes "such as undue delay, bad faith or dilatory motive on part of the movant."