Second Circuit
Appellate Jurisdiction: Meaning of "Final Decision"
Leftridge v. Connecticut State Trooper Officer #1283, 640 F.3d 62 (2d Cir. 2011)
Pro se plaintiff-appellant commenced a Section 1983 action in 2007 alleging that he had been improperly stopped and ticketed by a Connecticut State Trooper on account of his race. Plaintiff moved for the appointment of counsel to represent him, and the district court denied the motion on the basis that plaintiff was capable of representing himself. Plaintiff continued to request the appointment of counsel, and, in February 2009, submitted a letter to the district court from his psychologist stating that serving as his own counsel was causing him inordinate anxiety and stress. The district court subsequently entered an order which (a) continued to deny plaintiff's request for appointed counsel, (b) gave plaintiff until June 2009 to hire counsel, and (c) administratively closed the case without prejudice subject to being reopened by an attorney for the plaintiff.
In June 2009, having been unable to raise sufficient funds to hire counsel, plaintiff moved for an extension of time to do so. The district court denied this motion. Plaintiff then moved to reopen the case to permit him to proceed pro se, while continuing to attempt to raise the money needed to retain counsel. The district court denied this motion, as well.
Upon plaintiff's appeal, the defendants noted that no judgment had been entered, and argued that the district court's closure of the case should be affirmed on the ground that it was properly dismissed for lack of prosecution or for failure to comply with court orders. The Second Circuit held that, notwithstanding the lack of a "judgment," the district court's decision was "final" within the meaning of 28 U.S.C. §1291 because (1) it appeared to have intended its order to be its final action in the case and (2) the order unconditionally ended the case (albeit "administratively"). The Second Circuit then held that the district court had abused its discretion in refusing to reopen the case and allow plaintiff to proceed pro se.
Appellate Practice: Sanctions for Frivolous Appeal
Gallop v. Cheney, 642 F.3d 364 (2d Cir. 2011)
April Gallop (a U.S. Army Specialist) commenced an action against senior federal government officials (including Former Vice President Dick Cheney and Former Defense Secretary Donald Rumsfeld) alleging a 9/11 conspiracy. Gallop asserted violations of her constitutional rights pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), a common law tort of conspiracy to cause death and great bodily harm, and a violation of the Antiterrorism Act, 18 U.S.C. § 2333(a). Gallop was represented by counsel both in the district court and on appeal and claimed that senior governmental officials caused the September 11, 2001 attacks against the United States in order to (a) create a political atmosphere in which they could pursue domestic and international policy objectives and (b) conceal the misallocation of $2.3 trillion in congressional appropriations to the Department of Defense. Among other allegations, Gallop alleged that a plane did not crash into the Pentagon, that senior governmental officials caused or arranged for the detonation of explosives, and knew in advance of the 9/11 attacks.
The district court concluded that Gallop's claims were frivolous, and dismissed her complaint under Rule 12(b)(6). Not only did the Second Circuit affirm, but it held that it had the authority to impose sanctions nostra sponte with adequate notice and opportunity to be heard pursuant to "Federal Rule of Appellate Procedure 38, 28 U.S.C. § 1927, and the inherent authority of the Court to consider sanctions on parties who pursue patently frivolous appeals and force the Court to consider – and the government to defend—vexatious litigation." Accordingly, the Court ordered Gallop and her counsel to show cause as to why they should not pay double costs and damages. Even though the government did not move for sanctions, the Court issued this order because the record on appeal left "no doubt that this appeal, to say nothing of the original complaint, was brought without the slightest chance of success, and therefore should not have been brought at all, even if authorized by the client."
David H. Tennant
Erik A. Goergen
Nixon Peabody LLP
Rochester, New York
Third Circuit
Appellate Procedure: Notice of Appeal
Government of the Virgin Islands v. Mills, 634 F.3d 746 (3d Cir. 2011)
The appellant was convicted of murder in the District of the Virgin Islands on February 22, 2002. On March 19, 2002, the appellant filed a pro se notice of appeal in an attempt to appeal the not-yet-entered judgment in the murder case. The notice of appeal correctly identified the parties to the appeal, the nature of the case, and the court to which the appeal was being taken. However, it erroneously referenced the docket number and trial date of the appellant's earlier assault case. Although the trial court and the appellate court both indicated that the appeal related to the murder case, not the assault case, the government subsequently moved to dismiss the appeal, arguing that the notice of appeal was fatally defective. The appellate court granted the motion, concluding that it could not entertain the appeal because the notice was insufficient, even though the government had never represented that it was actually prejudiced or misled by the defects in the notice.
On appeal, the Third Circuit recognized that it was to employ a "commonsense, purposive approach to determine whether a notice of appeal complies with the rules." Under such an approach, a notice of appeal that fails to strictly comply with the judgment-designation requirement of Fed. R. App. P. 3(c) will nevertheless be deemed adequate if "in light of all the circumstances" it is reasonably clear which judgment the party seeks to appeal. The Third Circuit concluded that the notice, though error-laden, was not so inadequate that it should prevent the appeal from being considered on the merits, given that the surrounding circumstances made clear which judgment the appellant intended to appeal and the appellee was not prejudiced by the errors contained in the notice.
Kimberly Boyer-Cohen, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
Philadelphia, Pennsylvania
Fourth Circuit
Appellate Procedure: Adequacy of Notice of Appeal
Newport News Holdings Corp. v. Virtual City Vision, Inc., No. 09–1947, 2011 WL 1467183 (4th Cir. Apr. 18, 2011)
Newport News Holdings Corporation brought this action against Virtual City Vision alleging multiple claims, including a violation of the Anticybersquatting Consumer Protection Act (ACPA) and copyright infringement. After the action was filed in February 2008, the parties agreed that the case would be handled by a magistrate judge. In September 2008, the magistrate judge informed the parties that counsel for Newport News had served on the advisory panel that had recommended the judge's reappointment. Virtual City stated that it would not seek recusal of the judge on this basis. Virtual City again declined to seek recusal after being informed that the magistrate judge was a former member of the same law firm as counsel for Newport News and that they had worked on cases together.
In February 2009, the magistrate judge granted summary judgment to Newport News on its ACPA claim and set the other claims for trial. Only then did Virtual City move for recusal. The magistrate judge denied the motion and Virtual City's motion for reconsideration. On July 24, 2009, the magistrate judge entered a final order that resolved several issues: it awarded costs (but denied attorney's fees) to Virtual City based on Newport News' abandonment of the copyright claim; it awarded statutory damages and attorney's fees to Newport News on its ACPA claim; and it imposed sanctions on Virtual City's counsel because the belated motion for recusal was made "recklessly and in bad faith."
On appeal, Newport News argued that Virtual City had waived the sanctions issue by not identifying the attorneys as appellants in the notice of appeal. The Fourth Circuit agreed that Fed. R. App. P. 3(c)(1)(A) requires that the notice of appeal identify the parties appealing, but it also noted that Fed. R. App. P. 3(c)(4) cautions against dismissing appeals for failure to name a party when "intent to appeal is otherwise clear from the notice." In a previous case, the Fourth Circuit held that a notice of appeal that covered only an order for sanctions was not invalid under Rule 3(c)(1)(A) because there was "no risk of ambiguity or confusion": the only appealable order was the sanctions order, and the only party entitled to appeal was the attorney. Miltier v. Downes, 935 F.2d 660 (4th Cir. 1991).
The Fourth Circuit held that Miltier did not apply to Virtual City's appeal of the sanctions order because its "notice of appeal [was] far from a model of clarity." In particular, Virtual City did not specify which of the multiple rulings in the July 24 order it intended to pursue on appeal. The Court concluded that the notice of appeal was deficient.
Appellate Jurisdiction: Denial of Class Certification
Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d 88 (4th Cir. 2011)
Residents of Parkersburg, West Virginia brought this action, individually and on behalf of a proposed class, alleging various claims based upon contamination of the water supply with perfluorooctanoic acid (PFOA) from a manufacturing facility owned by DuPont. The plaintiffs alleged several "traditional" common law tort claims (e.g., negligence, battery, and nuisance) and sought relief including an injunction requiring medical monitoring. Additionally, the individuals and the class pled a claim for the common law tort of "medical monitoring" recognized in 1991 by the West Virginia Supreme Court.
Concluding that the medical-monitoring tort could not be proved on a class-wide basis, the district court denied class certification for that claim. Employing the same reasoning, the district court denied certification of a class to pursue medical monitoring relief based on the traditional common law tort claims. Subsequently, the district court granted DuPont's motion for summary judgment as to the traditional common law torts but denied summary judgment on the individual plaintiffs' medical monitoring claims. In order to appeal immediately the grant of summary judgment and the denial of class certification, the plaintiffs voluntarily dismissed their individual medical monitoring claims.
The Fourth Circuit held that the plaintiffs lacked standing to appeal the denial of class certification. To have standing under Article III, a litigant must have a "personal stake" in the litigation at all times. In the case of a class action, a class representative generally has both a personal stake in the litigation and "a distinct procedural right to represent the interests of similarly situated individuals." See U.S. Parole Comm'n v. Geraghty, 445 U.S. 388 (1980). This interest may, in certain circumstances, be a sufficient interest to confer standing to appeal the denial of class certification even after the class representative's claims have become moot.
The Court concluded that the "narrow exception" to the personal stake requirement does not apply when a plaintiff voluntarily dismisses his or her individual claims. Such a plaintiff, the Court reasoned, is no longer sufficiently self-interested to satisfy Article III standing requirements. In reaching this holding, the Court rejected the decisions of other circuit courts of appeals that have decided the standing question based on whether the stipulation of dismissal expressly reserved the right to appeal the denial of class certification.
Fifth Circuit
Appellate Jurisdiction And Procedure: Refusing Mandamus For Defective Removal
In re Crystal Power, 641 F.3d 82 (5th Cir. 2011)
A law firm intervened as plaintiff in a state court action brought by a foreign corporation that had been pending for nearly eight years. After being named as a defendant on cross-claims, the law firm removed the action to federal district court under 9 U.S.C. § 102, which creates original federal jurisdiction over certain international arbitration agreements, including removal of suits filed in state court. Original plaintiff Crystal Power moved to remand the case to state court, arguing that an intervening plaintiff is not entitled to removal because the statute's removal provision may only be invoked by "the defendant or defendants." The district court denied the motion and Crystal Power sought mandamus.
The Fifth Circuit initially granted mandamus relief, finding the intervenor-plaintiff's status indistinguishable from that of a state court plaintiff who later tries to remove federal counter-claims, a procedural posture that the Supreme Court has refused to allow. In re Crystal Power, 641 F.3d 78 (5th Cir. 2011) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)). The panel found that all three requirements for mandamus set out in Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004) and reiterated in In re Volkswagen of American, Inc., 545 F.3d 304 (5th Cir. 2008) were satisfied. Namely, the panel found that Cheney's "clear and indisputable right" requirement had been met because the district court lacked jurisdiction. The panel also found that Cheney's "no other adequate remedy" and "appropriate under the circumstances" requirements established given the waste of time and resources demanded and the federal court's ultimate inability to rule on the by-then dismissed cross-claims.
On rehearing, however, the Fifth Circuit reversed course and denied the petition, finding its hands tied by the Supreme Court's edict that ordinary costs of trial and appeal are not a sufficient burden to warrant mandamus relief. The circuit recognized the tension between "the century-old Supreme Court cases prohibiting mandamus review of jurisdictional defects" with the Court's "more recent push to rigorously enforce jurisdictional limits and their 'drastic' consequences." Clearly frustrated by the inevitable reversal of any judgment issued by the district court, the Fifth Circuit also acknowledged the "heavy shadow" cast on its own prior decisions, citing In re Hot-Hed, Inc., 477 F.3d 320 (5th Cir. 2007) (granting mandamus where district court's denial of remand was based on clearly erroneous assertion of federal question jurisdiction) and In re Dutile, 935 F.2d 61 (5th Cir. 1991) (granting mandamus where district court denied remand on an explicitly non-removable claim).
Appellate Procedure: Law Of The Case Doctrine Applied To Class Certification Review
Gene & Gene, L.L.C. v. BioPay, L.L.C., 624 F.3d 698 (5th Cir. 2010) (BioPay II)
Gene, the owner of a business that received an unsolicited advertisement fax from Biopay, filed a class-action suit against Biopay, alleging violations of the Telephone Consumer Protection Act. After discovery, Gene moved for class certification, proposing to define a class of all Louisiana recipients of such unsolicited transmissions from Biopay, but expressly excluding any recipients from whom BioPay received prior permission to send the advertisements. The district court certified the class. Biopay brought an interlocutory appeal under Fed. R. Civ. P. 23(f). The Fifth Circuit reversed the certification and remanded for "further proceedings not inconsistent with this opinion," holding that "the determinative question of whether consent can be established via class-wide proof must, given the particular facts of this case, be answered in the negative." Gene v. Gene LLC v. BioPay LLC, 541 F.3d 318 (5th Cir. 2008) (BioPay I).
On remand, Gene successfully moved to reopen discovery on the issue of class certification. The district court subsequently re-certified the class based on BioPay's production of its customer database (including fax permission information) in a different, more easily searchable format. Upon BioPay's second Rule 23(f) interlocutory appeal, the Fifth Circuit again reversed the certification. In rejecting the district court's conclusion that BioPay I left open the possibility of re-certification on remand, the BioPay II opinion invokes the "law of the case" doctrine, providing that "an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal."
The Fifth Circuit emphasized that Rule 23(f) provides only a small window for potential disruption by accelerated appellate review and is not "an interlocutory tool to clarify issues and provide a roadmap for litigants to reformulate their arguments." The circuit also held that, in this procedural posture, neither the district court's continuing duty under Rule 23 to assess class-certification orders nor a new-evidence exception to the law of the case trumped the circuit's prior opinion denying class certification. The court noted that discovery was complete when Gene first successfully moved for class certification, the "new" evidence was not new, and full briefing and appellate resources had already been expended on the issue. Judge Southwick wrote separately, concurring with the ultimate result, but finding reasonable the district court's interpretation of BioPay I as allowing something further to be done on class certification.
Appellate Jurisdiction: Collateral Order Doctrine
Martin v. Halliburton, 618 F.3d 476 (5th Cir. 2010)
Martin's father, a civilian employee of U.S. government contractors, was killed by friendly fire while driving a truck in Iraq. Martin filed suit against the contractors, alleging several state-law causes of action. The contractors asserted various immunity and preemption defenses, but the district court denied their Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. The contractors did not request certification of the decision for interlocutory appeal under 28 U.S.C. § 1292(b), but instead immediately appealed the district court's order, citing the collateral order doctrine. The Fifth Circuit dismissed the interlocutory appeal, most significantly because it found the immunity defenses were not the type that would be subject to the collateral order doctrine, but also because it could not determine the contractors' entitlement to immunity or preemption relief on the limited record. In its original opinion, the Fifth Circuit emphasized the narrowness of the class of collaterally appealable orders, citing the Supreme Court's recent decision in Mohawk Industries v. Carpenter, ---U.S.---, 130 S.Ct. 599 (2009). The court later issued a revised opinion, adding a single paragraph encouraging district courts to adequately develop the record and use section 1292(b) to certify orders implicating the government's interest in military matters and prerogatives.
Susan S. Vance
Alexander Dubose & Townsend LLP
Austin, Texas
Sixth Circuit
Appellate Practice: Standard of Review for Order Decertifying Class Action
Randleman v. Fid. Nat'l Title Ins. Co., 646 F.3d 347 (6th Cir. 2011)
Plaintiffs' class action complaint alleged that the defendant failed to provide a discount, as required by its rates filed with the State of Ohio, when issuing title insurance in refinance transactions to homeowners who had purchased a title insurance policy for the same property from any other insurer within the previous ten years. This resulted in plaintiffs being overcharged $213.57 for title insurance. To be entitled to the discount rate under Ohio law, the title insurer must have received a copy of the prior policy or the file must have contained "other information sufficient to enable the Insurer to identify such prior policy upon which reissue is requested." Concluding that this question was common to all class members and predominated over all other issues, the district court initially certified the case as a class action. Further discovery negated the district court's earlier presumption that the existence of a prior mortgage in the chain of title would serve as notice that a prior policy invariably had been issued. Because liability could only be determined on an individual basis by examining each individual homeowner's file, the district court decertified the class finding that the putative class failed to meet the commonality or typicality requirements.
No previous Sixth Circuit precedent existed establishing the standard of review applicable to orders decertifying classes. After noting that other circuits have reviewed decertification orders under an abuse-of-discretion standard, the Sixth Circuit adopted the same, highly deferential standard. Based on how the plaintiffs framed the issues and defined the class, the Sixth Circuit held, the district court did not abuse its discretion decertifying the class action because common issues did not predominate.
Appellate Procedure: One Year Deadline to Remove is Procedural, Not Jurisdictional
Music v. Arrowood Indem. Co., 632 F.3d 284 (6th Cir. 2011)
Upon the state court's severance of the plaintiff's bad-faith insurance claim from the underlying uninsured-motorist action, the insurer removed the bad-faith action to federal court on the basis of diversity of citizenship jurisdiction. More than 30 days later, plaintiff moved to remand claiming that the defendant failed to remove the case within one year after the action was commenced as required by 28 U.S.C. § 1446(b). The district court denied the motion to remand holding that plaintiff had forfeited any objections to the timeliness of the removal through his own failure to move for remand within 30 days of the notice of removal as required by 28 U.S.C. § 1447(c).
The Sixth Circuit began its opinion by noting the absence of any published opinion deciding the precise issue of whether § 1446(b)'s one-year limitation period is a procedural rule, subject to waiver and forfeiture, or a jurisdictional mandate that may be raised anytime prior to final judgment. In reaching its decision, the Sixth Circuit rejected one panel's prior unpublished table opinion and held that the one-year time limitation rule for removal pursuant to 28 U.S.C. § 1446(b), is procedural and therefore subject to forfeiture.
Appellate Practice: No "Public Interest" Exception to Article III and Mootness Doctrine
Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711 (6th Cir. 2011)
Plaintiff, a continuing-education student with mild cognitive disabilities, obtained a permanent injunction pursuant to the Americans with Disabilities Act, the Fair Housing Act, and the Rehabilitation Act requiring the university to provide him with on-campus housing during his enrollment. While the university's appeal of the injunction was pending, the plaintiff was provided dormitory housing for the 2010 spring semester, completed his course of study, and left the university with no plans of returning. After dispensing with several more common exceptions to the mootness doctrine, the Sixth Circuit addressed the university's argument for the recognition of a "public interest" exception to the mootness doctrine whereby Article III federal courts would be permitted to hear non-live disputes whenever the resolution of important legal questions would serve the public interest in the resolution of the issue. Rejecting the invitation to adopt such "a far-reaching proposition" and "stand-alone" exception, the Sixth Circuit dismissed the university's appeal as moot but vacated the underlying judgment so as not to penalize the university for its inability to secure meaningful appellate review before the plaintiff completed the program.
Timothy J. Fitzgerald
Gallagher Sharp
Cleveland, Ohio
Seventh Circuit
Appellate Jurisdiction: Order Finding Duty to Defend
General Casualty Ins. v. Clark Mall, 644 F.3d 375 (7th Cir. 2011)
The Seventh Circuit determined that appellate jurisdiction was absent, even though the insurer-appellant had obtained a "final order" from the district court finding a duty to defend its insured shopping mall owner.
Fire destroyed a mall. Multiple mall tenants sued the mall owner for its alleged responsibility for the fire. Its liability insurer then filed a declaratory judgment action against the mall owner and tenants, asserting that it owed no duty to defend or indemnify based on a coverage exclusion of property over which the insured had "care, custody or control." The mall owner and tenants counterclaimed, seeking a declaration that defense and indemnity obligations existed. The mall parties also asserted that the insurer had breached a state law prohibition against "vexatious and unreasonable refusals to defend."
The district court held that General Casualty had a duty to defend, and agreed to treat its order as a "final judgment" under Fed. R. Civ. P. 54(b), so that the appeal could proceed immediately. The Seventh Circuit questioned the finality of the judgment.
To be final and appealable under Rule 54(b), a judgment must be "an ultimate disposition of an individual claim entered in the course of a multiple claims action," citing Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956). Determining whether a judgment is appealable under Rule 54(b) requires the appellate court to compare "the issues at stake in the appealed claims and those remaining in the district court."
Insurance coverage disputes are often distinct enough to satisfy the final judgment rule, and permit immediate review under Fed. R. Civ. P. 54(b) and under 28 U.S.C. § 1291, such as when coverage and liability issues are bifurcated. But the issues here were not so discrete. To the contrary, the insurer's request for a declaratory judgment as to its defense and indemnity obligations prompted numerous counterclaims tied directly to the merits of its duty to defend. Those counterclaims remained pending. As such, the entry of judgment pursuant to Rule 54(b) was in error, and the appeal was dismissed.
Appellate Jurisdiction: Denial of Foreign State Attachment Immunity
Rubin v. The Islamic Republic of Iran, 637 F.3d 783 (7th Cir. 2011)
The Seventh Circuit held that an order denying attachment immunity under the Foreign Sovereign Immunities Act (FSIA), in the absence of an assertion of the affirmative defense by the foreign sovereign itself, was an immediately appealable collateral-order, under 28 U.S.C.A. §§ 1291 and 1609. Short of immediate appeal, the order could be appealed along with a later order closely linked to the same issue of immunity.
Victims of a suicide bombing carried out with the assistance of Iranian material support obtained a default judgment against Iran. Attempting to execute on the judgment, they sought to attach Iranian-loaned property held by several Illinois museums. The museums asserted attachment immunity under 28 U.S.C. § 1609, which provides that in most cases, a foreign state's property is immune from attachment. The district court held that such immunity must be specifically pleaded as an affirmative defense. Iran then specially appeared to make the immunity claim, at which point it was served with discovery requests about Iranian property located throughout the United States. Iran objected, and the district court ruled that the FSIA did not preclude such discovery.
Iran appealed the discovery order. That order essentially rejected Iran's sovereign immunity claim, making the order immediately appealable under the collateral order doctrine. The same reasoning also made the district court's earlier order denying § 1609 immunity subject to interlocutory review.
Generally, an order authorizing discovery in aid of execution is not appealable until the end of the case. But that general rule is in tension with the specific rule that orders denying claims of immunity may be appealed immediately under the collateral order doctrine. The Rubin Court looked to two earlier Seventh Circuit cases which analyzed jurisdictional and not attachment immunity, but recognizing that the Fifth Circuit already has likened the two immunities, the Seventh Circuit did the same. See FG Hemisphere Assocs. v. Republique du Congo, 455 F.3d 575, 584 (5th Cir. 2006).
Normally, collateral orders must be "final decisions" under § 1291, and must be appealed within 30 days of entry. Nonetheless, the Court took its guidance from Weir v. Propst, 915 F.2d 283, 285 (7th Cir. 1990), which explained that orders denying immunity are appealable, without invoking § 1292(b), by virtue of Mitchell v. Forsyth, 472 U.S. 511 (1985). Rule 4(a) of the Federal Rules of Appellate Procedure dictates that if collateral orders, including those denying immunity, are not appealed within the deadline, the defendant must wait until another appealable order is entered. Usually that waiting period lasts until the final judgment, but in this case, the general asset discovery order itself was appealable, and thus "revived" the appeal of the attachment immunity order.
Appellate Jurisdiction: Denial of Qualified Immunity
Hernandez v. Cook County Sheriff's Office, 634 F.3d 906 (7th Cir. 2011)
The Seventh Circuit held that while denial of summary judgment is most often not appealable, where the denial involved only legal questions –here, waiver - an order denying qualified immunity can be appealed immediately.
Jail officers sued the sheriff after being subjected to a harsh investigation of a jail outbreak. The investigated officer-plaintiffs asserted that they received extreme treatment as retaliation for earlier complaints about jail conditions. They alleged First Amendment violations, as well as claims for emotional distress and false imprisonment. The sheriff defendants moved to dismiss, and then moved for summary judgment based on qualified immunity, at least with regard to the First Amendment claims. The extent of the defendants' briefing on the qualified immunity issue was modest: Their principal brief described immunity law in two paragraphs, and applied it in three sentences; their reply brief devoted almost four pages to the issue. Ultimately, the district court concluded that the defense had been waived due to the limited analysis.
The sheriff-defendants appealed, urging that although their arguments were scanty, they were sufficient to allow plaintiffs to respond, and thus waiver did not occur. The Seventh Circuit agreed. An appeal from a denial of summary judgment on qualified immunity grounds may be entertained where the denial turns on an issue of law, and not on factual issues, citing Mitchell v. Forsyth, and Levan v. George, 604 F.3d 366, 369 (7th Cir. 2010). A finding of waiver is a legal determination which enables appellate review of the denial of qualified immunity. Waiver is the "intentional relinquishment or abandonment of a known right." United States v. Olano, 507 U.S. 725, 733 (1993). Waiver can be found not only where there is silence on an issue, but even where "skeletal" arguments have been made, or where the argument is made only on reply. Yet neither is a blanket rule, and here, where the defendants had raised qualified immunity both in a motion to dismiss and in a separate but sparse section on summary judgment, there was adequate notice and no prejudice to plaintiffs.
In sum, because the denial of summary judgment for qualified immunity was based on the legal determination that waiver had occurred, the order was ripe for immediate appeal.
Beth Ermatinger Hanan
Gass Weber Mullins LLC
Milwaukee, Wisconsin
Eighth Circuit
Scope of Appellate Review: Summary Judgment Decision When No Rule 50 Motion Filed After Jury Trial
Owatonna Clinic-Mayo Health v. the Medical Protective Co., 639 F.3d 806 (8th Cir. 2011)
Appellant was not required to file a Rule 50 motion for judgment as a matter of law in order to ensure appellate review of the district court's summary judgment decision even though a jury trial followed. The insured, a clinic, sued its insurer claiming that it was obligated to defend and indemnify the clinic in a medical malpractice suit. The insurer argued no duty existed because the clinic had not given proper notice of the potential claim. After cross-motions for summary judgment, the district court held the notice provided was sufficient as a matter of law. Based on policy language, the court also determined that when giving notice the clinic must "reasonably believe allegations of liability may result" from the incident. The court decided there was no triable issue regarding whether the clinic's belief was objectively reasonable.
The district court denied summary judgment on most issues and submitted one question to the jury: whether the clinic actually believed it was at risk for litigation. After the jury returned a verdict for the clinic, the insurer appealed. The insurer did not file a Rule 50 post-trial motion for judgment as a matter of law. On appeal, the insurer challenged the district court's summary judgment decision.
The Eighth Circuit rejected the clinic's argument that it lacked jurisdiction over the insurer's appeal, concluding that "strictly speaking, our question is not one of jurisdiction but one of preservation," i.e., whether the insurer was required to bring a Rule 50 motion to ensure review of the summary judgment decisions. The Court added, "our cases related to this general question may not be in harmony," citing several examples. But the Court refused to resolve "the apparent conflict" because the insurer's "real complaint" is not that the district court erred in denying summary judgment, but that it "effectively granted partial summary judgment to the Clinic on them." Because a Rule 50 motion, by its terms, only applies to issues that the jury receives, it "has no application" to the insurer's issue on appeal. The Court reasoned that this case is "no different" from those where a defendant's liability is established by summary judgment and a trial is held solely on damages. The Court proceeded to decide the merits and affirmed the district court.
Scope of Appellate Review: Summary Judgment Decision When No Rule 50 Motion Filed After Jury Trial
Studnicka v. Pinheiro, 618 F.3d 799 (8th Cir. 2010)
Appellant failed to preserve its challenge to the district court's decision to deny summary judgment because he did not file a Rule 50 motion for judgment as a matter of law following a jury trial. Plaintiff, while a federal prisoner, sued his doctor and clinic, claiming they had performed throat surgery on him without first obtaining his informed written consent. Plaintiff's medical records included no written consent form and he claimed he had consented to surgery to treat carpal tunnel syndrome. Plaintiff moved for summary judgment, arguing that Minnesota required written informed consent, but the district court disagreed and denied the motion. Plaintiff then brought a motion in limine that the "standard of conduct" required a signed form, but the district court again disagreed and denied the motion. The jury found for defendants and plaintiff appealed.
Because plaintiff/appellant "had an opportunity to litigate the consent issue at trial," the Eighth Circuit held it would "not review at this juncture the district court's pretrial ruling." The "proper vehicle" for plaintiff to preserve his "legal contention" was a motion under Rule 50. Because no such motion was brought, "there is no basis for our review." Additionally, the Court rejected plaintiff's attempt at oral argument to raise the denial of his motion in limine. The Court held plaintiff "waived this argument by failing to mention it in his appellate brief." Additionally, the motion in limine "in substance" was asking for "reconsideration" of the district court's summary judgment decision. The Court affirmed the judgment.
Appellate Jurisdiction: Appellate Review of Remand Order
Public Sch. Retirement Sys. of Mo. v. State Street Bank & Trust Co., 640 F.3d 821 (8th Cir. 2011)
Because the district court's remand order was not based on a ground "specified" in 28 U.S. C. § 1447(d), the Eighth Circuit had jurisdiction over the district court's decision. Defendant/appellant bank and trust company agreed to manage some of the assets belonging to plaintiff, a public employee retirement system. The retirement system sued in state court, claiming that defendant violated statutory and common-law duties. Bank and trust company twice removed to federal district court and the district court twice remanded. Bank and trust company's appeals were consolidated.
The retirement system argued that the court of appeals lacked jurisdiction, relying on 28 U.S.C. §1447(d) which provided that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." After noting that the prohibition was "broadly worded," the Eighth Circuit determined it had jurisdiction, based on precedent establishing that § 1447(d) applied only to orders remanding for procedural defect or lack of subject matter jurisdiction. The Court reasoned that this order remanded because of a forum selection clause in the parties' contract. "Nearly every circuit has held that § 1447(d) does not prohibit appellate review of a district court's remand order based upon a forum-selection clause." The Eighth Circuit decided to "agree with our sister circuits" and proceeded to affirm the remand order, with one judge dissenting on the merits.
Diane B. Bratvold
Briggs and Morgan, P.A.
Minneapolis, Minnesota
Ninth Circuit
Appellate Jurisdiction: Certification of Interlocutory Appeal
Couch v. Telescope, Inc., 611 F.3d 629 (9th Cir. 2010)
This case involves cash giveaway games associated with the television programs "American Idol" and "Deal or No Deal." The named plaintiffs entered the games but did not win a prize, so they sued the defendants and claimed the games were an unfair business practice because they constituted an illegal lottery under California penal law. The defendants moved to dismiss, arguing that the plaintiffs' claims failed for lack of consideration. The district court denied the dismissal motion, relying on four leading California lottery cases supporting its construction of the illegal lottery statute and finding no contrary authority. But the district court also granted the defendants' motion to certify its dismissal order under § 1292(b). The court conceded that a substantial ground for difference of opinion did not exist, but certified its order anyway, in the "interests of comity" and for the "limited purpose" of having the Ninth Circuit, in turn, certify the novel legal questions to the California Supreme Court.
The Ninth Circuit rejected the appeal. The Court first emphasized that because § 1292(b)'s certification requirements are jurisdictional, it had an independent obligation to determine whether the district court's order met those requirements. It also explained that several factors were important to evaluating the "substantial difference of opinion" requirement, including whether: (1) the issue in question is the subject of a circuit split and the circuit court in which the appeal is sought has not spoken on the issue; (2) complicated foreign law questions arise; or (3) novel or difficult questions of first impression are presented. The Court emphasized, however, that a substantial difference of opinion does not automatically arise where the district court may be "the first to rule on a particular question" or where "counsel contends that one precedent rather than another is controlling[.]"
The Court then disagreed with the district court that certification was proper, because the defendants, as the district court noted, had not "provided a single case that conflicts with the district court's application or construction" of the illegal lottery statute. As a result, the section's substantial difference of opinion requirement could not be met. Id. Moreover, it did not matter how important or novel the question might be: "[A] question of first impression, standing alone, is insufficient to demonstrate a substantial ground for a difference of opinion." The Court also refused to grant permission to appeal in the "interests of comity" or for a "limited purpose of certifying a question to the state Supreme Court" because neither factor could be found in § 1292(b). To reinforce the point, the Court admonished district courts to focus first and foremost "on the statutory requirements [of] Section 1292(b), not policy considerations which may or may not be furthered by certification."
Appellate Jurisdiction: Criteria For Permitting Appellate Review Of Removal Order Under Class Action Fairness Act
Coleman v. Estes Express Lines, Inc., 627 F.3d 1096 (9th Cir. 2010)
A California employee filed this class action against his employers in California state court. The defendants removed to federal court under the Class Action Fairness Act ("CAFA"), but the district court granted remand on the ground that the case fit within CAFA's "local controversy" exception. The defendants applied for leave to appeal under 28 U.S.C. §1453(c)(1), which provides discretionary appellate review of remand orders under CAFA.
The Ninth Circuit first noted that CAFA itself provided no guidance about how courts are to evaluate applications for leave to appeal. The Court then adopted the First Circuit's "helpful list of criteria" to determine whether leave to appeal should be granted. A key factor, according to the Court, is whether the appeal presents "an important CAFA-related question." In contrast, because CAFA's appeal provision was intended to develop a body of appellate law interpreting the statutes, "the presence of a non-CAFA issue (even an important one) is generally not thought to be entitled to the same weight." Moreover, if the CAFA-related question is unsettled, appellate review is more likely.
The Court also adopted several case-specific factors, including the importance of the CAFA-related question to the case at hand and the likelihood the question will evade effective review if left until after a final judgment. The appellate court also should consider whether the record is sufficiently developed to permit review and evaluate the balance of harms related to permitting appeal. The Court emphasized that permission to appeal ultimately is discretionary and that these criteria "are guides, not a series of bright line rules."
The Court then found that the case presented an important issue of CAFA-related law—namely, whether a district court is permitted to look beyond the pleadings to evaluate the local controversy exception. It further concluded that the case was well-positioned for appellate review and that the defendant would suffer harm if the appeal was not permitted. The Court granted leave to appeal.
David J. de Jesus
Reed Smith
San Francisco, California
Tenth Circuit
Appellate Procedure: Objection To Untimely Notice Of Appeal Properly Raised By Motion Rather Than Cross-Appeal
U.S. v. Madrid, 633 F.3d 1222 (10th Cir. 2011)
The Tenth Circuit held that appellee properly challenged the timeliness of the notice of appeal by way of motion to dismiss rather than cross-appeal of the district court order granting an extension. In doing so, the Court rejected a Third Circuit opinion to the contrary, see Amatangelo v. Borough of Donora, 212 F.3d 776, 780 (3d Cir. 2000).
The issue arose when the appellant missed the deadline for appealing his sentence. Appellant's counsel first filed an untimely notice of appeal and then filed a Fed. R. App. P. 4(b)(4) motion for extension, claiming excusable neglect. The district court granted the motion with a one-sentence order before expiration of the government's deadline to respond. The government filed a motion to dismiss in the appellate court, challenging the trial court's extension order and arguing that counsel's tardiness was not excusable.
The Tenth Circuit rejected appellant's argument that the government had to file a cross-appeal to challenge the district court's extension. The Court has traditionally accepted motions to dismiss appeals on the basis of tardiness, even if the district court has granted a challenged extension of time. Such motions are the appropriate vehicle for dismissing an entire case for lack of jurisdiction or any other recognized reason, whereas cross-appeals are required only if the appellee is seeking relief from part of the judgment being appealed.
The Court also rejected the argument that the government forfeited its right to object to the extension by not first seeking relief from the district court. The government could not be faulted for the district court's premature ruling. In addition, the government could not have obtained relief via a motion for reconsideration in the district court: The order accepting the untimely notice of appeal had already caused the transfer of jurisdiction to the appellate court. Although district courts may address certain matters after a case is on appeal, they cannot consider motions or issue rulings that would thwart appellate jurisdiction—such matters fall to the court of appeals.
Appellate Jurisdiction: Order Withdrawing Approval Of Settlement Not Immediately Appealable
McClendon v. City of Albuquerque, 630 F.3d 1288 (10th Cir. 2011)
The Tenth Circuit held that an order withdrawing approval of a class-action settlement is not a final decision subject to appeal. The class-action lawsuit pertained to conditions inside the defendant city's jails. The district court exercised continuing jurisdiction over the case after the parties negotiated a series of settlement agreements starting in 1997, and eventually withdrew its approval of the most recent agreements in a 2009 order. The defendants argued that this new order was an appealable "final judgment" because it came after the judgment that approved the original settlements.
The Tenth Circuit disagreed, noting that not all post-judgment orders are appealable final decisions under § 1291. Each such order must itself qualify as a final decision to be appealable. In this case, an order voiding approval of a settlement agreement does not end the litigation or disassociate the court from the case—just the opposite, it is tantamount to a "reset" button on the litigation. Thus, the order in this case is analogous to a Rule 59 order granting a new trial or a Rule 60 order setting aside a judgment. None of these orders are final, appealable decisions.
The Court also rejected the argument that the order disapproving the settlements fell within the scope of the collateral order doctrine, noting that the Tenth Circuit and the Supreme Court had rejected the same argument in Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755 (10th Cir. 1993), aff'd,511 U.S. 863 (1994). A "settlement's promise against future litigation … is insufficient to warrant an appeal," the Court held.
The majority opinion took Desktop a step further, stating that the "right not to stand trial" only justifies an immediate appeal when that right is guaranteed by statute or constitution, not when it is created by the negotiated instruments of parties. The concurring opinion agreed with the result, but argued that this last statement by the majority is unfortunately worded dicta.
Appellate Procedure: Appellant Need Not Wait For Rule 58(a) Separate Document Or Passing Of 150 Days Before Filing Appeal
Constien v. U.S., 628 F.3d 1207 (10th Cir. 2010)
The Tenth Circuit held that an appellant is not required to wait for a Fed. R. Civ. P. 58(a) separate document, or the alternative 150 days, before filing a notice of appeal. The "final decision" requirement is met by the court's rendering of a decision that ends the litigation on the merits and leaves nothing but execution of the judgment. The Court explained that the Rule 58(a) separate document requirement does not affect the finality of such final decisions, but rather is a procedural requirement that clarifies the date the final judgment is officially entered. Because this procedure benefits the party seeking to appeal, it can be waived by that party.
This case, the district court dismissed appellant's action based on the lack of effective service of process, but failed to enter a judgment via separate document as required by Rule 58(a). Therefore, entry of judgment did not officially occur under Fed. R. App. P. 4(a)(7)(A)(ii) until 150 days after entry of the order of dismissal. The appellant filed her notice of appeal after the order of dismissal, but before the 150 days had expired.
Although the appellant's notice of appeal was premature in relation to the official entry of judgment, it was "cured" by Fed. R. App. P. 4(a)(2) and became effective when judgment finally entered under the 150-day rule. The Court cautioned that the curing power of Fed. R. App. P. 4(a)(2) only applies to notices of appeal that are filed after final decisions, and that parties cannot preserve issues for appeal by filing premature notices after unappealable interlocutory decisions. In this case, however, the dismissal of the action was an appealable final decision.
Katherine Taylor Eubank
Fowler, Schimberg & Flanagan P.C.
Denver, Colorado
Eleventh Circuit
Appellate Practice: Effect Of Filing Notice Of Appeal Before Rule 54(b) certification
National Ass'n of Boards of Pharmacy v. Board of Regents of the University System of Georgia, 633 F.3d 1297 (11th Cir. 2011)
A nonprofit association brought an action against a state university and others for the alleged misappropriation of the association's copyrighted materials. The association sought damages for copyright infringement under federal law, misappropriation of trade secrets under state law, and breach of contract.
The defendants moved to dismiss the federal claim on the ground that the Eleventh Amendment barred the court from entertaining it. The district court granted the motion to dismiss. The association filed a notice of appeal of the district court's dismissal order. Two days later, the association moved the court to enter a partial final judgment as to that order under Federal Rule of Civil Procedure 54(b). The district court granted the motion that same day.
A motions panel of the Eleventh Circuit dismissed the association's appeal, holding that its notice of appeal was premature and was not cured by the later Rule 54(b) certification. The panel relied on prior Eleventh Circuit cases, such as Useden v. Acker, 947 F.2d 1563, 1570 (11th Cir. 1991). The association moved for reconsideration, and the jurisdictional issue was carried with the case.
The merits panel reversed the initial decision of the motions panel. It held that "a subsequent Rule 54(b) certification cures a premature notice of appeal from a non-final order dismissing claims or parties." The merits panel cited prior Eleventh Circuit decisions holding that premature notices of appeal are valid if filed from an order that is later made appealable by the entry of a final judgment. The merits panel invoked the prior panel precedent rule—explaining that the cases relied upon by the motions panel were preempted by earlier decisions. Finally, the merits panel also relied on decisions from other circuits and a brief discussion of Rule 4 of the Rules of Appellate Procedure.
On the merits, the Court affirmed in part and vacated in part the district court's opinion.
Diversity Jurisdiction: Dismissal Of Non-Diverse Defendants On Appeal, Citizenship Of Party With Dual Citizenship
Milinos Valle del Cibao v. Lama et al., 633 F.3d 1330 (11th Cir. 2011)
Molinos, a Dominican corporation, sued three members of the Lamas family who were living in Florida for allegedly violating a currency exchange agreement whereby the corporation agreed to pay 28 million Dominican pesos for $636,596.00. Molinos paid the 28 million but the checks from the Lamas bounces. After granting judgment on some claims, the District Court held a jury trial on Molinos's claims for breach of contract claim and unfair trade practices. The jury returned a $1.4 million verdict.
On appeal, the Lamas argued that the judgment should be vacated because the District Court lacked subject matter jurisdiction over the three defendants—Oscar Sr., Oscar Jr. and Carlos. For various reasons, the Lamas argued that all three defendants were citizens of the Dominican Republic for the purposes of diversity jurisdiction.
First, the Lamas argued that Oscar Sr. was a citizen of the Dominican Republic because he holds dual citizenship with the Dominican Republic and the United States. Citing persuasive authority from the Ninth, Third, Fifth and Sixth Circuit, the Court rejected that argument. The Court held that "courts should consider only the United States citizenship of individual who are dual citizens." The Lamas also argued that Oscar Sr., even if a United States citizen, was domiciled in the Dominican Republic. The Eleventh Circuit held that, because Oscar Sr. lived in Florida at the time the suit was filed, there was a rebuttable presumption that he was domiciled at that address and that there was insufficient evidence in the record to rebut the presumption.
Second, Oscar Jr. and Carlos argued that they were not diverse because they were only citizens of the Dominican Republic, albeit living and working in the United States. The Court agreed. The Court then addressed the "difficult question" of whether the judgment should be vacated as to Oscar Sr. or whether Oscar Jr. and Carlos should simply be dismissed. The Court concluded that neither Oscar Jr. nor Carlos were indispensable under Rule 19(b) and that Molinos did not receive an unfair tactical advantage by including them in the litigation. The Court also held that Oscar Sr. could not claim prejudice because he knew that his sons were Dominican citizens and could have raised a jurisdictional challenge before the entry of judgment.
Andrew Brasher
Bradley Arant Boult Cummings
Birmingham, Alabama
D.C. Circuit
Appellate Procedure: Timeliness of Appeal
Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc.,630 F.3d 217 (D.C. Cir. 2011)
The D.C. Circuit held that "if the appellant files a notice of appeal after the district court has issued, orally or in writing, an order that would be appealable if followed by a partial final judgment issued pursuant to Rule 54(b) [of the Federal Rules of Civil Procedure], then the notice ripens [pursuant to Federal Rule of Appellate Procedure 4(a)(2)] when a final judgment is later entered." The D.C. Circuit further held that this test should be applied objectively, so a premature notice of appeal can ripen after final judgment is entered, even if the appellant had subjectively understood when it filed the premature notice of appeal that an appeal had not been certified under Rule 54(b).
University's insurance carrier (plaintiff) filed a lawsuit against fire-sprinkler inspector (defendant), asserting claims for negligence and breach of contract arising from damage caused by a burst pipe. The defendant brought third-party claims for contribution and indemnity against the building manager (third-party defendant) who allegedly denied access to the pipe that burst. The parties moved for summary judgment. The district court granted the third-party defendant's motion, dismissing the building manager from the lawsuit; denied the defendant's motion; and granted the plaintiff's motion with respect to the breach of contract claim only.
Defendant then sought certification under Rule 54(b) of an interlocutory appeal of the order granting summary judgment for the third-party defendant. The district denied certification. Later, plaintiff and defendant notified the court that they had settled all claims and would finalize a settlement agreement within thirty days; later that same day, the defendant filed a notice of appeal regarding its third-party claims and the district court dismissed the case without prejudice based upon the impending settlement, stating the case would stand dismissed with prejudice after ten days, unless counsel moved to extend the date or reopen the case. Seven days later, the plaintiff and defendant filed their joint stipulation of dismissal. After the tenth day, when the district court's order of dismissal became final by its terms, the appeal proceeded without further action by the district court or a notice of appeal from the final judgment.
The third-party defendant argued that the D.C. Circuit lacked appellate jurisdiction for want of a timely notice of appeal. The Court found it was undisputed that the defendant's only notice of appeal was filed prematurely, that is, before the district court had entered a final, appealable judgment. On the date the defendant filed its notice of appeal, the plaintiff's negligence claim was still pending, and the district court had expressly denied certification of an interlocutory appeal under Rule 54(b). The notice of settlement of the claims between plaintiff and defendant had made clear that a later stipulation of dismissal would follow and, therefore, district court proceedings were ongoing.
The D.C. Circuit rejected the third-party defendant's narrow construction of its prior precedent, holding, "if the appellant files a notice of appeal after the district court has issued, orally or in writing, an order that would be appealable if followed by a partial final judgment issued pursuant to Rule 54(b), then the notice ripens [pursuant to Rule 4(a)(2)] when a final judgment is later entered." The third-party defendant had argued this rule applies only to oral bench rulings, which the D.C. Circuit rejected as a "factual difference [that] is of no moment" and an inaccurate description of its prior precedent.
The D.C. Circuit next rejected the third-party defendant's argument that the district court's denial of certification under Rule 54(b) showed that certification would have been inappropriate and, therefore, the premature notice of appeal did not ripen after final judgment. The D.C. Circuit held that the analysis turns upon whether a "hypothetical" judgment under Rule 54(b) would have rendered the case appealable. For Rule 4(a)(2) to apply, the court of appeals does not have to "consider whether there was 'no just reason for delay' or whether the district court would have abused its discretion by entering a Rule 54(b) judgment."
Finally, the D.C. Circuit rejected the third-party defendant's argument that "having made and lost a Rule 54(b) motion, it was not reasonable [for the defendant] to believe the partial summary judgment order was appealable." The D.C. Circuit held that an "objective understanding of Rule 4(a)(2) is more appropriate to a jurisdictional analysis than would be a flexible standard focusing upon reasonableness." Under an objective test, the court held that the defendant's notice of appeal ripened under Rule 4(a)(2) and it had jurisdiction to consider the appeal.
Standard of Review: Issue Preservation
United States v. 8 Gilcrease Lane, Quincy, Fla., 638 F.3d 297 (D.C. Cir. 2011).
The D.C. Circuit held that "a district court does not abuse its discretion in denying a Rule 60(b) motion to reinstate withdrawn claims when the withdrawal was the product of a free, deliberate choice."
The district court denied defendants' motion under Rule 60(b) to rescind the withdrawal of their claims for the return of seized funds in a civil forfeiture action, "concluding that they had released their claims knowingly and voluntarily."
The D.C. Circuit found no "circuit court precedent setting forth principles for assessing whether a district court abused its discretion in denying a Rule 60(b) motion to rescind a withdrawal of claims in a civil forfeiture action." The Court, however, took "counsel from the Supreme Court's instruction that Rule 60(b) is not an avenue for relieving litigants from 'free, calculated, deliberate choices.'" The court noted that "[t]his teaching had guided much of [its] Rule 60(b) case law," and it had previously emphasized that "'Rule 60(b) cannot . . . be employed simply to rescue a litigant from strategic choices that later turn out to be improvident.'"
Accordingly, the D.C. Circuit held that the district court did not abuse its discretion in denying the Rule 60(b) motion because the "appellants' choice to withdraw their claims . . . was free and deliberate."
Federal Circuit
Appellate Practice: Cross Appeal
Aventis Pharma S.A. v. Hospira, Inc., 637 F.3d 1341 (Fed. Cir. 2011)
The Federal Circuit held that a "cross-appeal may only be filed 'when a party seeks to enlarge its own rights under the judgment or to lessen the rights of its adversary under the judgment'" and a party may not file a conditional cross-appeal to present alternative grounds for affirming that would not expand the scope of the judgment.
Although they had prevailed before the district court, appellees "filed a 'protective' cross-appeal to preserve [their] ability to challenge the district court's" rejection of one of their alternative arguments. Appellants moved to dismiss the cross-appeal.
In the Federal Circuit, "[a] cross-appeal may only be filed 'when a party seeks to enlarge its own rights under the judgment or to lessen the rights of its adversary under the judgment.'" In other words, "[a] party may cross-appeal if adversely affected by the appealed judgment in some particular which it seeks to have modified."
The Federal Circuit explained that "an unwarranted cross-appeal 'unnecessarily expands the amount of briefing,' and also gives 'the appellee an unfair opportunity to file the final brief and have the final oral argument, contrary to established rules.'" The court's "practice with respect to cross-appeals does not limit the arguments that can be presented on appeal," because "[a]ttorneys are free to devote as much of their responsive briefing as needed to flesh out additional arguments and alternative grounds for affirming the judgment on appeal." Parties "are not free, however, to game the system by filing a cross-appeal to obtain the final word: this is neither fair to the appellant nor an efficient use of the appellate process.
The Federal Circuit rejected the appellees' argument that its practice was "in material conflict with other circuits." Although "[o]ther circuits may allow a conditional cross-appeal as a means to raise additional arguments which do not expand the scope of the judgment," the Federal Circuit too "provide[s] the opportunity to raise additional arguments, but requires parties to raise such arguments in their primary briefing." Thus, parties appearing in the Federal Circuit "have the same substantive opportunity to make their arguments, although the means used to do so differs in form."
The Federal Circuit held that the appellees' cross-appeal was improper because, if successful, it would not have expanded the scope of the judgment in the appellees' favor. It, therefore, dismissed the cross-appeal.
Appellate Practice: Waiver of Appeal
Taylor Brands, LLC v. GB II Corp., 627 F.3d 874 (Fed. Cir. 2010)
The Federal Circuit held that consent to a stipulated final order does not waive a party's right to appeal (even without an express reservation of appellate rights) when the consent was only to the form of the order and not to its substance.
Plaintiff-appellant filed a patent infringement action against defendant-appellee. Prior to discovery, the defendant moved for partial summary judgment of non-infringement as to twenty-two of its accused products. The defendant informed the district court, "[i]f there's no infringement then the Defendant should be free to go home...and [would] dismiss its counterclaims of invalidity without prejudice allowing judgment to be entered and the case to be appealed at that point on just the infringement question."
Both parties then moved to amend their pleadings to add additional claims for false marking and false advertising. The district court subsequently granted defendant's motion for partial summary judgment. Thereafter, both parties agreed to withdraw their motions to amend, and defendant agreed to dismiss without prejudice its counterclaim for a declaratory judgment of invalidity. This made it possible for the district court to enter a final judgment. The parties then signed a proposed Stipulated Final Judgment, which provided: (a) defendant had not infringed plaintiff's patent; (b) plaintiff's infringement complaint was dismissed with prejudice; (c) plaintiff's motion to amend was withdrawn; (d) defendant's counterclaim seeking a declaratory judgment of invalidity was dismissed without prejudice; and (e) defendant's motion to amend was withdrawn. The district court signed this final order.
Plaintiff filed a notice of appeal from this Stipulated Final Judgment, challenging the district court's entry of summary judgment of non-infringement. Defendant filed a motion to dismiss the appeal, contending that the plaintiff had waived any right to appeal by consent to the entry of judgment against it without expressly reserving the right to appeal.
The Federal Circuit held that the plaintiff had not waived its right to appeal the entry of summary judgment of non-infringement against it. The court said "[t]he distinction between consenting to the substance of a judgment (i.e., agreeing as to what the substantive outcome of the judgment will be) and merely consenting to the judgment's form (including agreeing that the judgment will be final instead of interlocutory) is crucial to the issue of whether waiver of a party's right to appeal should be presumed." Thus, a "party who consents to the substance of a judgment should indeed be presumed to have waived its right to appeal-absent an express reservation of that right on the record-because voluntarily agreeing to an adverse substantive outcome is an indication that the party has abandoned its underlying claims or defenses." However, "no waiver exists-even without a reservation of appellate rights-when a party consents solely to the form of a judgment, because merely agreeing to the form of a judgment does not in itself imply that the party agrees with the judgment's substantive outcome or intends to abandon its position on the issues."
Plaintiff cited numerous cases in which parties who consented to adverse judgments were held to have waived their right to appeal by failing to expressly reserve that right on the record. The Federal Circuit, however, viewed all of these cases as distinguishable, "because they involved situations in which a party consented to the substance of an adverse judgment as opposed to merely its form." The Federal Circuit also noted that those "cases all involved either settlement agreements or voluntary dismissals, both of which necessarily imply a party's consent to the substantive outcome." The court was "aware of no case in which a party was found to have waived its right to appeal due to the mere ministerial act of stipulating to the form of a final judgment."
The Federal Circuit found there was "no showing that the parties entered into any settlement agreement" and no showing that the plaintiff "agreed to surrender its infringement claim…in consideration of [defendant]'s agreement to withdraw its motion to amend and to dismiss its invalidity challenges." The court found the plaintiff "consented to the entry of a final judgment only after the district court had granted summary judgment of non-infringement," which plaintiff had opposed on the merits. The plaintiff's "consent at that point to the purely ministerial act of entering a judgment pursuant to Rule 58 implementing the summary judgment decision cannot be construed as consent to the substance of the summary judgment order."
The defendant contended "that the order granting partial summary judgment of non-infringement in fact was 'not dispositive of the entire case as it then existed' because the summary judgment order (1) only applied to the twenty-two accused products specifically named in the order; (2) did not address induced or contributory infringement; and (3) did not decide the parties' motions to amend to add new claims for false marking and false advertising." The Federal Circuit, however, pointed out that the defendant's contentions "ignore[d] the fact that the summary judgment order was indeed dispositive of [plaintiff]'s infringement claims against the twenty-two identified products." However, "the fact that some collateral issues were not resolved by a dispositive interlocutory order indicate[d] that [plaintiff] consented to the substance of the judgment to the extent that it extended beyond carrying the summary judgment order into effect." Plaintiff "thus waived its right to contest any such collateral issues on appeal by failing to expressly reserve that right." The Federal Circuit held that plaintiff had "not waived its right to appeal the summary judgment order itself and any issues addressed therein."
James Sullivan
Hollingsworth LLP
Washington, D.C.
Committee Chair
Publications Vice Chair
