The necessity of a cross appeal to argue personal jurisdiction, appellate standing for an attempted class-action objector, appealing TROs, and more.
April 21, 2020
Last week, the D.C. Circuit untangled several appellate issues—including the necessity of a cross-appeal to argue personal jurisdiction—in the course of hearing an appeal. The Seventh Circuit held that an attempted class-action objector lacked appellate standing when she did not seek to intervene. Plus another attempted appeal from a temporary restraining order, some improper qualified-immunity appeals, the timeliness of intervention appeals, appealing dismissals without prejudice, and appellate jurisdiction in cases of unserved defendants.
- The D.C. Circuit on cross-appeals and personal jurisdiction
- The Seventh Circuit on appeal standing for an attempted class-action objector
- Another TRO appeal
- Last week’s improper qualified-immunity appeals
- The Eleventh Circuit on the timeliness of intervention appeals
- The Third Circuit on appealing dismissals without prejudice
- The Seventh Circuit on appellate jurisdiction and unserved defendants
The D.C. Circuit on cross-appeals and personal jurisdiction
In Shatsky v. Palestine Liberation Organization, the D.C. Circuit addressed three interesting appellate-procedure and -jurisdiction issues. The case involved claims under the Anti-Terrorism Act stemming from 2002 suicide bombing in the West Bank. The district court granted summary judgment for the defendants on the merits, and the plaintiffs appealed.
The D.C. Circuit first determined that the summary-judgment decision was final and appealable even though the plaintiffs had voluntarily dismissed their claims against several defendants without prejudice. This dismissal came before the summary-judgment decision, and there was no evidence of an attempt to manufacture an interlocutory appeal by dismissing outstanding claims.
Second, the court held that the defendants needed to file a cross-appeal to argue their personal-jurisdiction defense. The district court had rejected that defense and held for the defendants on the merits. But on appeal, the defendants again argued that the district court lacked personal jurisdiction. The D.C. Circuit noted that “parties seeking to press arguments that would change or modify the district court’s judgment to their benefit must cross-appeal.” And that was the case with personal jurisdiction; a jurisdictional decision on appeal would require vacating—not affirming—the district court’s decision.
Third, the court excused the defendants’ failure to cross appeal. Cross-appeals are not jurisdictionally required, and courts have excused the failure to file a cross appeal when (1) the opposing party had notice of the argument and an opportunity to respond to it and (2) the structural interests in adversarial presentation are not implicated. The parties in Shatsky fully briefed the personal-jurisdiction issue, and the plaintiffs did not raise any procedural objections to its consideration. The issue had thus been fully presented and litigated in both the district court and the court of appeals. The D.C. Circuit accordingly addressed it despite the lack of a cross appeal.
Shatsky v. Palestine Liberation Organization, 2020 WL 1856490 (Apr. 14, 2020), available at the D.C. Circuit and Westlaw.
The Seventh Circuit on appeal standing for an attempted class-action objector
In Douglas v. Western Union Co., the Seventh Circuit held that a class-action objector lacked standing to appeal the denial of fees or an incentive award because she did not appeal the earlier decision that she was not a member of the class.
After receiving notice of a proposed class settlement, the objector in Douglas tried to object to the settlement. But the district court ruled that she was not a member of the class. The objector did not seek to intervene or appeal that decision. She instead sought attorney’s fees and an incentive award (the district court had modified the class before approving the settlement, raising some of the same concerns as the objector), which the district court denied. The objector then tried to appeal the denial of fees and an award.
The Seventh Circuit held that it lacked jurisdiction over the appeal. The objector was never a party to the district court proceedings, and she acquiesced in the district court’s decision that she was not part of the class by not appealing it. This deprived her of standing to be aggrieved by any subsequent district court decisions, including the decision denying fees and an award. The Seventh Circuit explained that she should have tried to intervene. Had she successfully done so, she would then have been aggrieved by the district court’s fees and award decision, giving her standing to appeal. And had the district court denied intervention, she could have appealed that decision.
Douglas v. Western Union Co., 2020 WL 1847074 (7th Cir. Apr. 13, 2020), available at the Seventh Circuit and Westlaw.
Another TRO appeal
In South Wind Women’s Center LLC v. Stitt, the Tenth Circuit dismissed an attempted appeal from a TRO. Like two decisions from last week, a district court had entered a TRO enjoining Oklahoma’s COVID-19 related abortion restrictions. The state sought to immediately appeal the TRO. But the Tenth Circuit held that it lacked jurisdiction. The TRO was not effectively an injunction—it was of short duration, and the district court would rule on the preliminary injunction swiftly. Judge Lucero concurred to emphasize that Oklahoma had offered only conjecture—not evidence—of irreparable consequences that might support appellate jurisdiction.
South Wind Women’s Center LLC v. Stitt, 2020 WL 1860683 (10th Cir. Apr. 13, 2020), available at the Tenth Circuit and Westlaw.
Last week’s improper qualified-immunity appeals
Once again, multiple defendants failed to accept the facts that a district court had taken as true in denying qualified immunity and thus took improper qualified-immunity appeals.
In Franklin v. City of Southfield, the Sixth Circuit dismissed an improper qualified-immunity appeal because the defendant disputed the genuineness of a fact dispute. The defendant police officer Tased the plaintiff three times: once after the plaintiff moved closer to the defendant, and twice more after the plaintiff had fallen to the ground. The district court denied immunity on the plaintiff’s excessive force claims, concluding that genuine fact disputes existed about (1) whether the defendant had motioned for the plaintiff to come closer to him before Tasing him and (2) the plaintiff’s conduct after he had fallen to the ground. On appeal, the defendant argued that he had motioned for the plaintiff to move to the front of a police car, not motioned for the plaintiff to come near him. But in doing so, the officer failed to accept, for purposes of the interlocutory appeal, the version of facts that the district court had assumed to be true in denying immunity. And a video of the events did not “blatantly contradict” that version of the facts.
In NeSmith v. Olsen, the Ninth Circuit dismissed a qualified-immunity appeal to the extent the defendant officers failed to present the facts in the light most favorable to the plaintiff. The decedent in NeSmith had hung himself in his jail cell. And the district court concluded that there was sufficient evidence for a jury to find that the officers acted with reckless disregard of the risk of suicide. On appeal, the officers failed to address evidence that they saw a rope hanging in the decedent’s cell the night before the decedent hung himself. The Ninth Circuit accordingly dismissed the officers’ appeal insofar as they challenged whether a constitutional violation occurred.
Franklin v. City of Southfield, 2020 WL 1862307 (6th Cir. Apr. 14, 2020), available at the Sixth Circuit and Westlaw.
NeSmith v. Olsen, 2020 WL 1847628 (9th Cir. Apr. 13, 2020), available at the Ninth Circuit and Westlaw.
The Eleventh Circuit on the timeliness of intervention appeals
In Developers Surety & Indemnity Co. v. Archer Western Contractors, LLC, the Eleventh Circuit dismissed an untimely attempt to appeal the denial of intervention. The would-be intervenor in Developers Surety filed its notice of appeal roughly one year after the district court had initially denied intervention and denied a motion to reconsider that decision. This notice was untimely; the denial of intervention is immediately appealable, and a notice of appeal must be filed within 30 days of the denial. And the would-be intervenors second motion to intervene—which was denied after the parties settled and voluntarily dismissed the case—was not independently appealable. A successive motion can restart the time for appealing when it is unique from the first one:
[W]here substantially new circumstances, evidence, or law make a new motion a viable being in its own right instead of merely a re-packaging in new garb of the corpse of an old motion in an attempt to resurrect it, a party may file, and appeal, a new motion so long as it starts with the proposition that the original, unappealed order was correct when entered.
(Quotation marks omitted.) But the would-be intervenor’s arguments in its second motion were the same as those in its motion to reconsider. And the would-be intervenor did not “start[] with the proposition that the original rulings [deeming those arguments forfeited] were correct.”
Developers Surety & Indemnity Co. v. Archer Western Contractors, LLC, 2020 WL 1898812 (11th Cir. Apr. 17, 2020), available at the Eleventh Circuit and Westlaw.
The Third Circuit on appealing dismissals without prejudice
In Meade v. Reynolds, the Third Circuit held that it had jurisdiction to review a dismissal without prejudice. The district court had dismissed the plaintiff’s case due to improper service, which is necessarily without prejudice. And dismissals without prejudice are often not final, appealable decisions; the plaintiff can refile the suit. But, the Third Circuit noted, courts can deem these dismissals final if the expiration of the statute of limitations would preclude refiling the lawsuit. And that was the case in Meade.
Meade v. Reynolds, 2020 WL 1867916 (3d Cir. Apr. 14, 2020), available at the Third Circuit and Westlaw.
The Seventh Circuit on appellate jurisdiction and unserved defendants
In Singleton v. Amita Health, the Seventh Circuit held that it had jurisdiction despite the district court’s not entering a judgment or resolving claims against 21 unserved defendants. The district court said that the case was “terminated,” signaling that the court was done with the case. And unresolved claims against unserved defendants do not preclude an appeal, particularly when any claims against them would now be untimely.
Singleton v. Amita Health, 2020 WL 1847468 (7th Cir. Apr. 13, 2020), available at the Seventh Circuit and Westlaw.